United Kingdom: Ediscovery Around the World

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.

On the topics of ediscovery and technology’s role in the law, Michele is among the nation’s most knowledgeable experts. Most notably, she co-authored the American Bar Association book, titled "Electronic Evidence and Discovery: What Every Lawyer Should Know." Fully knowledgeable in Legal Technology solutions and trends, she delivers thoughtful information through blogs, newsletters, webinars, videos and podcasts.

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