Rise of the machines: getting e-disclosure right

Vijay Rathour, a vice-president in the London office of digital risk management and investigations company Stroz Friedberg, considers the implications for e-disclosure of a recent High Court ruling

E-disclosure: emerging technologies facilitate rapid initial analysis of documentation

The criticism meted out by Mr Justice Ramsey, following what has been described as multiple failures in the e-disclosure process in the case involving the West African Gas Pipeline Company (WAPCo), may have caught some practitioners by surprise.

But with the complexity and sheer volume of data involved in a growing number of cases, sometimes reaching hundreds of millions of documents that require detailed analysis, what is the role of emerging technologies in addressing some of these concerns?

Courts increasingly expect that the best technology will be used, and used well, to keep cases within reasonable time and cost limits. This was highlighted as a key issue in West African Gas Pipeline Company Limited v Willbros Global Holdings Inc [2012] EWHC 396 (TCC) by Mr Justice Ramsey, who criticised the ineffective use of technology in processing the disclosure, which ultimately caused expensive delays.

Failings in the de-duplication process resulted in a doubling up of judgements made on identical documentation and inconsistent redaction of potentially privileged material. While clients have a key role to play in deciding the scope of this process, such as whether all duplicates should be removed or whether multiple individual copies should be retained to show specifically who read what, in this particular case the process was found to be inconsistent and confusing. This caused further failures, as multiple reviewers had made differing subjective judgements on the same documents.

Practice direction 31B, which has been in force since 2010, has allowed a further tightening of guidance relating to electronic disclosure. In parallel, the courts are increasingly aware of the technologies available and of how they can transform the practice of disclosure.

A fundamental catalyst to change is technology and, in particular, keyword recognition. Established and emerging technologies – such as early case assessment and auto-coding – facilitate rapid initial analysis of documentation to filter what is important, before undergoing scrutiny by human reviewers.

Early case assessment, an effective but still fairly underused technology, allows fee-earners an insight into the categories of documents making up the whole of the potentially disclosable population, well ahead of such information being passed to opposing parties. This significantly enhances the effectiveness of the review process, as the technology can be applied to a pool of millions of documents to radically reduce what needs to be subsequently subjectively analysed by humans.

Improved artificial intelligence in the auto-coding of documents is also making headway. This allows intelligent scanning to identify key forms of language, phrases and combinations of words that suggest important content, including privileged material or documents that demonstrate that litigation was being contemplated at a particular point in time. Such key technologies leverage the skills of human reviewers to focus on the most valuable and critical areas of the document review exercise.

While there has been a greater appetite to embrace such technologies in some other jurisdictions, notably in the US, there are growing signs that we could shortly see these become a regular feature in the UK. Once available and accepted, there is little doubt judges will start to query any case where they are not used effectively to help achieve the overriding objectives of justice and the CPR.

Early consultation with e-disclosure experts can help to ensure that the exercise is carried out as cost-effectively, accurately and consistency as possible, preventing embarrassing and costly judgements against instructing parties.

An area of continued debate is the role of outsourcing and offshore documentary review. As WAPCo has highlighted, offshore reviews can be difficult to manage, while the burden of ensuring that the review achieves the high standards required by the English legal system can be left open to chance.

Subtleties perhaps lost in translation and failings in the use of the technology underpinning the review, led to overseas reviewers missing large volumes of potentially relevant material in that case, drawing substantial criticism from opposing parties and the court.

The challenge in document reviews is finding the defensible balance between cost and effectiveness and the findings in WAPCo highlighted the necessity to ensure that the document review exercise is planned early and effectively. The substantial cost of legal expertise means that time wasted in improperly planned and executed review exercises will rapidly inflate costs and judges are unlikely to sympathise when these could easily have been avoided, with appropriate assistance from document review experts.

Highly effective technical solutions and review strategies can be put in place to ensure that a review can be conducted in an effective and cost-efficient manner. Experience shows that this will go a significant way in preventing some of the complications that sometimes arise in offshore reviews and the problems that led to the judge’s criticisms in the wake of this particular case.