The United Kingdom, a common law jurisdiction, is the second most established geography for ediscovery after the United States. There is a high degree of familiarity with ediscovery in the United Kingdom because edisclosure is a formal stage of the civil litigation process, governed by Part 31 of the Civil Procedure Rules, along with associated Practice Directions.
Our next stop exploring data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC brings us to the United Kingdom.
How are ediscovery practices in the United Kingdom different from neighboring countries or the United States?
Because there has been a keen emphasis on proportionality for a longer time, edisclosure in the United Kingdom is narrower than ediscovery in the United States. In addition, unlike many of its European neighbours, the United Kingdom has had edisclosure form part of its Civil Procedure Rules for over a decade. During that time, practical know-how regarding ediscovery technology has spread beyond litigation, so most lawyers are comfortable with the advantages a full analysis of electronic evidence can bring to their case.
How are data protection and privacy laws impacting ediscovery in the U.K.?
U.K. law firms frequently face cross-border discovery issues, which comes with the significant challenge of transferring data across borders to countries where different rules and regulations apply. While the United Kingdom is considered less strict than Russia and China, the EU General Data Protection Regulation (GDPR) might change this. Further, impending Brexit implications are also expected to have some impact on the way that data is handled for disputes and investigations in the United Kingdom. The bottom line: in the midst of this uncertainty, it seems sure that there will be more scrutiny on the holding of personal data and more fearsome penalties for mishandling personal data in the future.
What best practices are recommended for conducting ediscovery in the United Kingdom?
Akin to ediscovery practices around the world, edisclosure in the U.K. is often delivered by collective teams, making teamwork an absolute best practice. Further, similar to many other countries, disclosure and regulatory deadlines must be met in a well-ordered and timely fashion. The urgency and precise requirements of ediscovery cases carry a high degree of risk, so “getting it right” calls for expertise, care and coordination, as well as responsive support. For this reason, practicing ediscovery is as much about the people you work with, as it is about the technology you use.
In the U.K., companies and their counsel are interested in taking a more surgical approach to data selection. Instead of using keywords, review platforms offer analytical tools that can reveal more about the data, helping to provide a better understanding of who was involved, how they communicated and the words they actually used. In medical terms, this level of sophistication is akin to keyhole surgery, as opposed to older and cruder methods. Additionally, ediscovery technology can be used to perform proactive checks on employee behavior. Keeping up to date with ediscovery market developments is another new ‘best practice.’ The United Kingdom has a competitive ediscovery industry, so being able to quickly select the right provider for a quantifiable advantage (such as local presence or a particular technology) is of tremendous benefit.
Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.” From predictive coding practices in Australia and Ireland to cooperation in Canada, KrolLDiscovery is your international ediscovery resource.
What happens when your company is facing probable litigation and key evidence is located on a smart phone? Demand for mobile device data is increasing in litigation and investigations and it presents a complex, new playing field for legal professionals and computer forensics experts.
New Tools Specifically for Cell Phone Forensics
Drilling into a phone’s memory requires a certain level of process and technology expertise and if the technology product Cellebrite is not currently on your radar, it will likely surface soon. Cellebrite is a widely used mobile device forensics tool for data extraction and analysis. The combination of Cellebrite software and hardware helps the investigator delve into the messages, phones calls, voicemails, images, browsing history and more contained on a smart phone chip.
KrolLDiscovery on the ILTA Blog
KrolLDiscovery computer forensic expert Jason Bergerson recently explained how Cellebrite assists in mobile device examinations. Appearing on the International Legal Technology Association (ILTA) blog, Mobile Phone Forensics: Understanding Cellebrite Extraction Reports answers these questions:
- What processes and tools are used to investigate mobile devices?
- What limitations exist when extracting data from a mobile device?
- What are the common reports generated by Cellebrite?
- How are these reports leveraged by a forensic investigator?
To shine light on mobile device discovery and view a sample Cellebrite report, read Jason Bergerson’s ILTA blog post: Mobile Phone Forensics: Understanding Cellebrite Extraction Reports.
“We are honored to be chosen as a leading ediscovery provider in so many service and technology categories by National Law Journal readers.” Chris Weiler, CEO of KrolLDiscovery.
For the last six years, the National Law Journal (NLJ) has conducted a survey asking its readers to rank top providers in the legal marketplace. From data, research and technology to finance, expert witness and outsourced services, this survey highlights the businesses and individuals seen as the best in the industry. In all, the legal community cast over 4,500 votes to select the 2017 Best of The National Law Journal winners.
Given the collective opinions of thousands and the esteem of this national survey, KrolLDiscovery is honored to receive 10 awards, including four top honors, in this year’s survey. Specifically, KrolLDiscovery took home the gold award in the following categories:
- Managed Ediscovery & Litigation Support Service Provider
- Managed Document Review Services
- Predictive Coding Ediscovery Solution
- Data Recovery Solution Provider
Additionally, the company received silver awards in four categories:
- End-to-End Litigation Consulting Firm
- Technology Assisted Review Ediscovery Solution
- Data & Technology Management Ediscovery Provider
- Online Review Platform
Third-place honors include:
- End-to-End Ediscovery Provider
- Case Management Software to Law Firms
It’s great to know that all of the hard work of LDiscovery and Kroll Ontrack – now together as KrolLDiscovery – was recognized by NLJ readers. Learn more about all of KrolLDiscovery’s innovative technology and best-in-class services to support litigation, investigation, compliance and recovery from data loss. And, thanks to everyone that voted!
If you are in-house counsel, you need to be in-the-know when it comes to ediscovery.
As amendments to the Federal Rules of Civil Procedure (FRCP) take hold, 2016 saw major changes in ediscovery standards and 2017 will build on this momentum. In the upcoming months, expect courts to continue to define proportionality, embrace technology and become less forgiving of attorneys who lag behind and use outdated rules. Recently, I had the opportunity to publish an article in Today’s General Counsel. Ediscovery Trends to Watch in 2017 discusses the weighty ediscovery issues that in-house counsel must address throughout this year.
- Cooperation is expected. In 2016, court decisions made it clear that under amended FRCP Rule 26, it is the parties, not the courts, who need to manage discovery. Without cooperation, courts quickly return discovery disputes back to the parties for resolution. In-house counsel can reduce their costs by addressing discovery issues upfront with their opponents and avoiding costly court hearings and irate judges.
- Proportionality is key. Perhaps the biggest change to the discovery rules was a new requirement for discovery to be “proportional to the needs of the case.” In-house counsel must ensure that their discovery requests are specific and add value to their case in relation to the accompanying expense.
- Be prepared to defend or refute costs. Under the proportionality doctrine, courts look closely at the balance between benefit and burden. Requesting parties should be prepared to foot the bill for costly discovery if a greater benefit is not illuminated. When refuting a request as too burdensome, be ready to argue an imbalance with the benefit and suggest shifting the cost to the requesting party.
- Accountability matters when spoliation occurs. Under amended FRCP Rule 37(e), when a party claims lost or damaged evidence, courts will not find spoliation unless there was an “intent to deprive the other party.” However, in-house counsel must be prepared to explain “reasonable steps” taken to preserve evidence and prove that it cannot be reproduced in another format.
- TAR is the new norm. Savvy counsel will leverage predictive coding and Technology Assisted Review (TAR) to increase document review efficiencies and reduce costs. 2017 will likely see additional commentary from the bench on the use of TAR and counsel must be ready.
Read the full article, Ediscovery Trends to Watch in 2017, to grasp the full picture of what’s to come in ediscovery this year.
Judge Peck Has Had Enough of “Meaningless Boilerplate Responses”
Fischer v. Forrest, 2017 U.S. Dist. LEXIS 28102 (S.D.N.Y. Feb. 28, 2017)
“Unusually Deplorable” Conduct Costs Plaintiff $7 Million in Sanctions
Shawe v. Elting, 2017 Del. LEXIS 61 (Del. Feb. 13, 2017)
Ignorance of the Technology is No Excuse; Businesses Have a Duty to Ensure Confidential Information Cannot be Accessed
Harleysville Ins. Co. v. Holding Funeral Home, Inc., 2017 U.S. Dist. LEXIS 18714 (W.D. Va. Feb. 9, 2017)
California Department of Education Gets Schooled in Ediscovery Production Formats
Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., 2017 U.S. Dist. LEXIS 14983 (E.D. Cal. Feb. 1, 2017)
Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI
Excel Enters. v. Winona PVD Coatings, 2017 U.S. Dist. LEXIS 22932 (N.D. Ind. Feb. 17, 2017)
On this St. Patrick’s Day, it’s opportune to revisit a prominent Irish judicial opinion – in fact, the first known judicial opinion in Europe to endorse predictive coding.
In the spring of 2015, Ireland embraced predictive coding in Irish Bank Resolution Corporation Ltd v. Quinn  IEHC 175, a case holding that, in the discovery of large data sets, technology assisted review (TAR) using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents.
The judgment is a great read for predictive coding pundits and a shining endorsement of the potential benefits of this technology. Specifically, the court held that:
- The rules of court in Ireland do not require a manual document review to be carried out;
- The evidence establishes that in discovery of large data sets, TAR using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method in identifying relevant documents;
- As TAR combines man and machine, the process must contain appropriate checks and balances which render each stage capable of independent verification. The parties need to agree to these;
- Provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations;
- Predictive coding will save time and money if used to refine a data set and to limit the pool of documents to be manually reviewed. It was projected that 10% of the 680,809 documents would need to be manually reviewed after employing predictive coding, as compared to the traditional linear review estimate that required a team of 10 experienced reviewers, a nine month time frame and a cost of two million Euros; and
- Parties should first agree to the use of predictive coding, run agreed upon keyword searches to initially refine the data set and then use predictive coding subject to agreed-upon checks and balances. Documents suggested by the software as being potentially relevant should then be reviewed manually by a human review team.
The ruling addressed major concerns expressed about predictive coding and sought to sway the skeptics. It unequivocally stated that predictive coding will save time and money. Although there is no specific reference to proportionality in Irish law, the judgment stated that cost should not be a barrier on access to justice.
The Irish opinion relied significantly on Judge Peck’s Da Silva Moore opinion, setting the predictive coding tone in the United States in 2012. A year after Ireland’s Quinn opinion, the UK would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd.  EWHC 256 (Ch). In that case, Master Matthews estimated that predictive coding would offer significant cost savings and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.” Late in 2016, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.
As we continue through 2017, what country will be next to focus on predictive coding? Don’t miss any development; subscribe to KrolLDiscovery’s weekly email updates.
In early February, KrolLDiscovery sponsored a Legaltech educational session focused on mobile devices and extracting the data contained therein. You need not be a computer wizard to appreciate the volumes of relevant data housed on the mobile device in your hand; however, extracting that data does take a spark of genius. The standards and technology for extracting mobile device data are still progressing, variable and slightly confusing.
The Legaltech panel assembled to discuss this very topic included the following mobile device wizards:
- Michael Burg, corporate counsel for DISH Network,
- Clifford Nichols, senior counsel for Day Pitney,
- Rich Robinson, ediscovery and information manager for JCPenney, and
- Jason Bergerson, director of consulting operations for KrolLDiscovery.
The panel focused on four key topics:
- How mobile phones and applications differ across device types
- How to get access to mobile device data (or try to prevent collection from mobile devices in the first place)
- How to collect and extract data once you have access
- How to develop findings from the reporting and information you attain
A Law.com journalist in the audience memorialized some of the panelists’ remarks and advice. Take time to read the article “Mobile Data Extraction 101: How to Deal With Complex Mobile Data Structuring” to increase your own mobile forensics magic skills.
In 2017, KrolLDiscovery will be diving deep into ediscovery practices around the world. Tour with us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC.
A couple weeks ago, we travelled to the Land Down Under to learn about predictive coding practices in Australia. Our next stop: Canada, where we find that Canada is leading the way on cooperative ediscovery.
What role does ediscovery technology play in Canadian litigation matters?
Ediscovery practices in Canada closely align to analogous processes, principles and goals in the United States and the United Kingdom. For example, Canadian parties and their counsel are seeking to collect, process, review and produce electronic documents as quickly and efficiently as possible. To achieve that goal, many law firms have implemented in-house ediscovery technologies to be able to support their clients’ litigation needs. Some firms and corporations, on the other hand, also take advantage of the close-knit ediscovery community in Canada and choose to work with an ediscovery provider in a managed services capacity. Akin to the United States, many law firms are continuously re-evaluating current technologies and looking for new solutions as the cloud opens new avenues for conducting ediscovery faster and possibly cheaper without sacrificing security.
What is unique about ediscovery in Canada?
In Canada there is not a large body of ediscovery case law like in the United States or even the United Kingdom. In fact, a prominent judicial opinion referencing predictive coding or Technology Assisted Review has yet to be handed down. Instead, legal teams rely on practices and guidelines such as those found in The Sedona Canada Principles or Ontario Rules of Civil Procedure 29.1.03. Furthermore, the Ontario Ediscovery Implementation Committee (EIC) released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.
Specifically, when talking with Canadian ediscovery gurus, there is a general sense that Canada leads the global ediscovery community in terms of cooperation and proportionality, with many practitioners stating that developing ediscovery parameters with opposing counsel or regulators is simply more collaborative when compared to ediscovery matters in other jurisdictions.
What are some obstacles to ediscovery in Canada?
In some aspects of legal technology, the Canadian legal system is still playing catch-up, especially when it comes to the technically complex areas of ediscovery, trial presentation or technology in the courtroom. For example, there are factions of early-adopters embracing predictive coding in document review. However, despite the well-established benefits, the majority of legal teams are reluctant to leverage artificial intelligence to categorize documents.
Over the next few years, document review workflows will modernize as additional Canadian legal teams become more experienced with new technology such as predictive coding. This will be increasingly important in the antitrust practice area, where regulators are starting to adopt broader policies similar to U.S. antitrust protocols. The need for predictive coding will increase if parties in antitrust matters need to sift through additional volumes of documents.
How often do Canadian legal teams transfer data to the United States or Europe for ediscovery?
Canadian legal teams are continuously evaluating the needs of the specific matter and comparing risks and benefits of conducting ediscovery in Canada versus elsewhere. Many corporations in Canada have U.S. offices; so often, Canadian litigation has a U.S. based component and ediscovery documents easily cross borders. However, sometimes legal teams are reluctant to transfer data to the United States for ediscovery processing, hosting and review because of the potential impact on other pending cases or the importance of privacy in the matter. Legal teams in Canada understand that ediscovery is available in the global marketplace and should the availability of technology, ability to deliver under tight time frames or need for a large pool of document reviewers demand resources outside of Canada, parties will consider transferring subsets of data to the United States or Europe.
How does language impact ediscovery in Canada?
Many cases contain documents in both English and French; accordingly, legal teams often require document review teams comprised of bilingual Canadian lawyers fluent in English and French. This sometimes drives up the costs associated with review, placing more importance on advanced search and analytics technologies that increase document review speeds and effectiveness.
Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”
Last week I had the opportunity to speak at the February meeting of the Minnesota Association of Litigation Support Professionals chapter. About 50 people gathered for lunch and learning, sharing in a retrospective of ediscovery case law in 2016. This was a chance for me to “go deep” into the facts and holdings of some of the foremost judicial opinions in the past year and, for me personally, the experience was enjoyable. In full disclosure, I have been asked to speak at MALSP on this topic in years past; however, the assignment never grows monotonous. Each year there are always interesting and meaningful developments to discuss, with no shortage of captivating facts.
In addition to examining Bard, Gilead Sciences, CAT3 and Hyles, we talked about how the decisions of 2016 will shape ediscovery law and practices in 2017. There was great consensus that in 2016, courts and parties were finding their footing applying the 2015 FRCP amendments to ediscovery. In 2017, it is anticipated that courts will be off and running, digging into thornier issues as parties make stronger arguments for and against proportionality under Rule 26(b)(1) and sanctions under Rule 37(e). At the end of 2016, I published an article focused on both of these topics and more. As you prepare for ediscovery in 2017, be sure to take five minutes and read “How This Year’s Experience With the New Rules Will Shape Next Year’s Ediscovery.”