Philip W. Turner, Association of Corporate Counsel
There are certain challenges that face companies in Europe as they attempt to manage disclosure exercises that involve predominantly electronic material. This Top Ten offers practical guidance for in-house counsel in preparing for and overseeing electronic disclosure. While ''e-disclosure'' exercises are undoubtedly complex and create their own set of issues for in-house lawyers and others, there are ways of reducing the concomitant risks. If managed well, e-disclosure can be a cost-effective and time-effective means of supporting litigation.
1. Take Preliminary Steps Before Managing an E-Disclosure Exercise.
In other words, establish a master plan detailing the work that has been done, the work that still needs to be done, by whom it should be carried out, and by when. This will help to ensure that your company runs the e-disclosure exercise as efficiently as possible. Then, assess available resources against the timeframe within which the project should be completed. By undertaking this exercise at an early stage, a company can make provision for any additional resources it might need as the project develops.
2. Place Information "On Hold" if Litigation Becomes a Possibility.
The first thing your company must do when litigation becomes a reasonable possibility is to ensure that all potentially relevant information is immediately placed ''on hold'' so that it no longer falls within a company's routine document destruction procedures. The most common way in which a party to litigation can run afoul of a court due to its disclosure practices is a failure to preserve potentially relevant information after such time when litigation is clearly a risk. The "hold order" (or "preservation notice," as it is sometimes called) should identify the key players and events in the litigation in question, identify the business units affected, and be distributed to all who may be affected by it. You should also consider which third parties, if any, should be notified of their duty to retain documents.
3. Learn About and Utilize Helpful Technologies.
The work involved in electronic disclosure can be reduced by specially designed technologies aimed at making the process easier. There are a large number of different technologies on the market and they do not all perform in the same functions. The variety can seem confusing. Here is a thumbnail sketch of the different technologies on the market:
Litigation Support Tools
Products such as Concordance, iConnect, Ringtail, Summation and Zantaz/Introspect are the traditional tools on the market and are regularly used by most of the leading law firms. They take and present information in scanned or native format (i.e., data retained in its original format, such as Word or Excel, rather than scanned as either TIFF or PDF) and display it along with any coded information. These products have recently become more adept in dealing with native format files and providing simultaneous access to users around the world. Some of these products can be hosted by external suppliers.
Visually Oriented Litigation Support Tools
Products such as Attenex and Aungate are characterised by their visual, top-down approach to dealing with data, which allows users to see visual representations showing, for example, which individuals were involved with particular issues and the amount of communication they entered into with other individuals. This is useful when considering information flows in an organization rather than specifying a traditional search term based on the fielded information in the documents such as authors, addressees or dates. They encourage counsel to take a far more hands-on approach to the interpretation of information, enabling them to interpret and manipulate the data in a way that allows different inferences to be drawn.
In-house Tools
Tools such as Kroll's EDV or LexisNexis's Applied Discovery are used in litigation support organizations or by consultancies looking to extend their product base and to offer a wider portfolio of services to their clients.
Non-legal Tools
These are products designed mainly for sophisticated electronic searching, including concept searching, such as Autonomy (Aungate), which have been around in the corporate world for some time but can also be used in a legal environment.
Outside the core group of products, a niche sub-group of products exists to provide tools and utilities to help with specific issues arising in the course of electronic disclosure. One such issue is how to deal with the inevitable duplicates that are typical of electronic disclosure. Products such as Equivio can deal with this issue.
4. Preserve Underlying Data.
Once you have identified relevant data, great care must be taken to preserve its integrity. It is important to appreciate that there is more information contained, for example, in an email, than what appears on-screen. The underlying information behind every piece of electronic data is called metadata. Metadata includes information such as when a file was created, edited, and deleted, and, in the case of emails, when the email was sent or received. If an email's authenticity is later challenged and the email has been collected in such a way as to ensure the preservation of underlying data, the prospects of defeating such a challenge will be greatly improved.
Metadata is fragile and can be compromised very easily when it is collected and processed. Therefore it is important to use a data collection method that does not compromise the metadata, or to ensure that the correct metadata is archived before it is altered by the collection process. The companies that provide electronic disclosure technology (mentioned above) can recommend approaches to this issue.
5. Perform ''De-Duplication."
The removal of duplicate documents from the collection is known as "de-duplication" and can be carried out using the metadata of documents to identify two or more documents that are the same. The process of de-duplication is usually carried out across the mailboxes of all custodians whose documents have been collected and can result in reducing the total document population by as much as, or even more than, 50 percent, dramatically reducing the cost of review.
One potential pitfall, however, of undertaking de-duplication could occur where a duplicate email is removed from the document set of every custodian but one. If the custodian whose copy of the email is retained is later excluded from the review, the email in question may never be reviewed or produced. It is advisable, therefore, to keep track of the de-duplication process to allow re-population of de-duplicated items in such a situation.
6. Consider Having the Data Externally Hosted.
Many technology providers (such as those mentioned above) can provide access to material hosted on one of their own servers on behalf of their clients. The data is reviewed for relevance on the host system and only then imported into a firm's litigation support system. Many of these hosting tools can also act as the repository for disclosure information from litigation's inception to the trial. Hosting data electronically, whether in-house or externally, is advantageous to a multinational company and its legal team since information can then be made available around the clock and everyone involved can be assured that they are viewing the most up-to-date versions of the data.
7. Agree with the Opposing Party on an Output Format for your Data Exchange.
Considering the vast volumes of data involved in e-disclosure, your company and the opposing party will probably use DVDs or external hard drives. It is up to the parties to ensure that they take care to make production in a suitable manner. To achieve this, it is a good idea to swap test data in advance of the agreed exchange date to ensure that each party can comply with the agreed obligations. Parties should ensure that the data exchanged is real data from the case, rather than sample data that has been put together purely for the test exchange. The use of real data could reveal potential issues that the sample data would not, such as the presence of US-style dates or firm-specific issues, for instance the use of the term "correspondence" to cover the document types "letter," "fax," or "email".
When making production in the form of TIFFs or PDFs, it is prudent to ensure that they are searchable so that additional expense is not incurred in converting the contents to allow for optical character recognition (OCR). Where the documents to be reviewed are likely to be written in more than one language, it also makes sense to check the ability of the software to deal with foreign language documents.
8. Identify and Comply with All Applicable Privacy and Data Protection Laws.
In Europe, these may derive from E.U. law, as well as each country's unique national laws. On the E.U. level, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 concerning data protection, is key. It has been implemented at the national level in Member States. On the national level, additional, more stringent data protection rules may apply, as may various privacy and employment laws. In France, for example, trade unions and representatives are likely to be involved in the physical data collection to ensure the employee's rights are not violated.
9. Try to Get the Consent of Data Subjects.
If possible, it is preferable to obtain the consent of individuals whose personal data are being processed, even if the processing of the data is otherwise permitted under Article 7 of the Council Directive. The reason is because, as a practical matter, the collection of documents responsive to a document request or subpoena requires counsel to sift through and review other data not responsive to document request or subpoena. Written consents are also desirable because the local supervisory authority for data protection may interpret the other exceptions narrowly. The form of written consent sought from individuals should be as simple and straightforward as possible, given the circumstances and specific language requirements often imposed by local law. Even when consents are obtained, however, there can still be questions about their validity. In some E.U. countries, such as Germany, there are ongoing debates in legal circles about whether the consent of an employee is freely given and valid when given at the behest of the employer.
10. Make Use of Data Protection Agreements.
Another way to better comply with the Council Directive is to use a data protection agreement between the data exporter (your company) and data importer (for example, the law firm receiving the data). The European Commission has approved two model agreements, either of which parties can use verbatim, but may not modify. (See model contracts for the transfer of data to third countries here.) Under these agreements, the data importer is responsible for ensuring that parties subsequently receiving the data, such as vendors, comply with the agreement.
In either of these cases, however, application to the local supervisory authority for permission to export data still may be necessary. Even if approval is automatic, it may take several weeks. There may also be a mandatory waiting period to allow individuals to opt out. Again, guidance of local counsel expert in this area is essential. A violation of the directive can result in sanctions. (See Directive, art. 24.) Moreover, some countries, including the United Kingdom and Germany, impose personal liability, administrative and/or penal, for violators.
This Top Ten is only a brief summary of e-disclosure in Europe. In any matter involving international e-discovery, lawyers should be constantly on the alert for unexpected and novel issues and work closely with their clients and local counsel to identify and address those issues.
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Sources:
"Managing Electronic Disclosure, part two," Mark Huleatt-James and Richard Lewis, Practical Law Company [Note that ACC Members have access to some PLC resources here, and can sign up for a discounted full membership here.]
"Electronic Discovery in Europe: A Different Story," Jaculin Aaron and Laura J. Lattman, Law.com.