With the amount of electronic evidence growing rapidly in litigation cases, a survey by KPMG Forensic amongst 100 litigators in 22 leading UK-based law firms has found that there are widespread concerns about ambiguity in the e-disclosure rules, and that 50% of those surveyed believe judges and masters should be trained on the difficulties routinely faced in an e-disclosure exercise.
The research, carried out on KPMG Forensic’s behalf by Ipsos Mori, found that overall 48 percent of those surveyed believe that judges and masters are ill-equipped to make effective e-disclosure case management decisions. Amongst those litigators more heavily involved in e-disclosure, this rises to 71 percent.
In addition, over two thirds (68 percent) of those surveyed support the establishment of an independent body of industry practitioners to promote best practice and training in dealing with the disclosure of electronic documents.
Two years on from the anniversary of the Civil Procedure Rules (CPR) which laid down guidelines on e-disclosure in litigation cases, only 17 percent of lawyers believe that they have had a positive impact. Nearly a half (43 percent) believe that the rules have not had a positive impact, and almost six in ten (56 percent) believe that the rules have led to increased costs in conducting litigation.
According to KPMG’s survey, nearly half (48 percent) of e-disclosure cases cost £500,000 or more, with over a quarter (26 percent) costing more than £1 million.
A possible contributory factor to these high costs, KPMG Forensic suggests, could be that the two sides in a litigation are not meeting early enough – or at all – to discuss e-disclosure issues. Despite encouragement in the CPR that both sides of a case should cooperate on e-disclosure, nearly four in ten respondents (39 percent) admitted that they had never met their opponent to discuss it. Of those that had met, in nearly a third of cases (29 percent), it was not until or after the case management conference.
The most common suggestions from lawyers for improving the e-disclosure process are to obtain more clarity and guidance on the CPR rules, and to restrict the types of documents or information disclosed , or the cases in which the CPR e-disclosure rules apply.
Litigators typically regard business emails, word documents and excel spreadsheets as the most important types of document for electronic disclosure. However a range of other documents including databases, audio files and personal emails are also considered important. Perhaps surprisingly, text messages are not widely regarded as significant.
Commenting on the report findings, Paul Tombleson, Head of Forensic Technology at KPMG Forensic, said: “As electronically generated and stored information continues to proliferate, lawyers have expressed some clear concerns that the rules have not kept pace with the reality of the modern business world. E-disclosure can be immensely complex, costly and challenging, and litigators have called for renewed energy in agreeing clearer case management guidelines. Many of them also clearly believe that some training for judges could be beneficial.
“Technology may have created the problem, but technology can also be part of the solution. Lawyers need to be aware of the tools that exist to help them manage the information load, as well as devise review strategies to make the task easier.
“E-disclosure, as technical as it may seem, is in many ways at the heart of the modern litigation process, so it is clearly of great importance that the issues lawyers have raised here are debated, discussed and acted upon.”
Among some of the other findings in the report...
• 51% regard instant messaging records as being important in the e-discovery process
• 63% consider audio files important
• 70% said they would look to third-party suppliers for concept mapping tools
• 10% said they had never consulted with an IT specialist in any case
• 75% said they would consult with specialists in their own firm
• 33% said they would consult with a specialist at the client's organisation
• 71% believe judges are ill-equipped to make effective case management orders
The report goes on to conclude...
The experience of practitioners tends to suggest that the existing rules on e-Disclosure are by no means perfect. Practitioners are coping with a comparatively new framework to deal with ever expanding volumes of electronic material. Difficulties will inevitably be encountered on that journey. Costs are clearly a legitimate concern and practitioners are calling for greater clarity in the interpretation of rules in the hope of achieving greater consistency and predictability.
For the reasons already outlined in this report, it appears that there may be limited opportunities for Judges and Masters to provide definitive case law guidance. Many practitioners also doubt that Judges and Masters are sufficiently equipped to make effective e-Disclosure orders.
A majority of practitioners also seem to favour the formation of an independent body of industry practitioners. Such a body may have a role to play in terms of training the judiciary to assist them to make more effective e-Disclosure Orders, and to promote good practice in dealing with electronic documents. It is to be hoped that such a body emerges, perhaps through the recently suggested formation of an English counterpart to the Sedona Conference Working Group.
A copy of the full report (a 24 page PDF) is attached.
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Thursday, October 11
Lawyers call for clarity on e-discovery - and training for judges
by
Charles Christian
on Thu 11 Oct 2007 07:55 BST
 1 AttachmentsFriday, October 5
Bearpark joins Cognito team
by
Charles Christian
on Fri 05 Oct 2007 14:26 BST
AIM-listed Ultima Networks plc, whose legal legal sector subsidiary is Cognito Software, has appointed Richard Bearpark as a non-executive director. Until its acquisition by the CS Group (now IRIS) last year, Bearpark was the chief executive of AIM Group Holdings. Commenting on the appointment, Ultima chairman & chief executive Humayun Akhter Mughal said "Our objective of growth, organically and through acquisition, remains core. Richard is well regarded in our industry sector. His connections are wide ranging and business experience directly complementary to Ultima. We welcome him to the board”
Robert Piper, Ultima’s Finance Director, has been given the additional appointment of managing director of subsidiary company Cognito Software. Piper is in the process of strengthening the management team of Cognito and progressing business development opportunities. Mr. Bearpark will also contribute to this process. Wednesday, October 3
New NLIS trials announced
by
Charles Christian
on Wed 03 Oct 2007 10:18 BST
The Council for the National Land Information Service (C-NLIS) has launched a number of trials aimed at determining how access to base or unrefined land and property information held in local authorities can be provided electronically. Working with a number of partners, including Northgate Information Solutions and the NLIS Hub, initial explorative work has begun in eight local authorities. The local authorities participating are:
• London Borough of Islington • London Borough of Croydon • London Borough of Lambeth • London Borough of Camden • Liverpool City Council • Guildford Borough Council • Woking Borough Council • West Oxfordshire Borough Council The original idea for the project came out of the Office of Fair Trading's Market Study into Property Searches which recommended that such data be made available and the introduction of the Home Information Packs this month has added further momentum. Alex Fraser, chief executive of C-NLIS commented "C-NLIS is excited to be taking the lead in investigating how such data could be delivered electronically. We have been given support for our work from Communities and Local Government and we have been delighted with the response that we have received thus far from local authorities and from the private sector. Once we have collected sufficient data, we will consult widely with interested parties on how best to take this initiative forward and how to make access to this data a practical reality on a national scale." The local authority data will be made available in manual and electronic format through NLIS, other mediums and independent portals. www.c-nlis.org.uk Monday, October 1
IRIS start to reorganise the CS Group legal division
by
Charles Christian
on Mon 01 Oct 2007 14:41 BST
The IRIS Group, which acquired the Computer Software Group (aka CSG including its legal division comprising AIM, Laserform, Mountain and Videss) today announced a reorganisation of the legal division – which also sees the departure of some well-known names within the legal market, namely Jim Chase of AIM and Ian Knox and Steve Kendrick of Mountain.
Change number 1 is the name – the CS Group vanishes and the legal business unit will be known from today as IRIS Legal Solutions. Change number 2 is a move from the business operating as separate companies and a shift towards operating as functional units at a senior management level, including customer service, development, sales and marketing, HR, professional services and product management. However the four individual 'brands' will continue to have their own discrete personnel so, for example, Videss sales will still be handled by the Videss sales team and Mountain helpdesk requests will still be handled by the Mountain support team. Commenting on the changes, managing director Arlene Adams said "This change allows us to pull together best practice, optimize our resources and introduce industry leading software development methodologies and processes. In doing so I am convinced we can offer a whole new level of service and innovation that the legal industry has not yet seen, whilst maintaining our commitment to 'user choice' by not ending the life of any of our products. "Until the recent IRIS acquisition trail the legal market largely consisted of small private owned software houses and with this business structure comes limited investment. I was surprised to find a general lack of innovation and process in the legal sector compared to that of other software markets. There is a great opportunity with the backing of IRIS for us to make substantial investments in people, process and technology that enables us to reset the benchmark at whole new level." Adams says she has already started the ball rolling with the creation of a Product Management function within the new structure that will maintain a very strong focus on individual product lines. The new management team comprises... long time AIM staffer Benette Tarbotton as Head of Customer Support, Hazel Birdsall, another long-time AIM manager, as Human Resources Manager, Catherine Bailey, previously with CSG, as Head of Marketing, Philip Murray (originally technical director at Meridian Law and more recently with Mountain) as Head of Professional Services, Videss veteran Chris Rose becomes Sales Director Solicitors. And, reflecting the group's niche markets, Nick Ozga will be the Sales Director for the barristers and coroners systems, while Brian Welsh will continue as the General Manager of GB Systems Scotland As part of this organisational change, those leaving the business include Jim Chase (former MD of AIM and recently the Operations Director of CS Legal), Ian Knox (MD of Mountain) and Steven Kendrick (Sales Director of Mountain). |
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