With social networking becoming commonly used in business and personal interactions, finding evidence for court cases is becoming a headache for everyone involved.
Nicholas Adamo, partner, Deloitte Forensic
ZDNet Australia spoke to Nicholas Adamo and Warren Dunn from Deloitte Forensic, and Eddie Sheehy, CEO of e-discovery software vendor Niux, about how technology is affecting discovery in the federal courts, and what changes need to be made to simplify the process.
The process of discovery, simply put, is gathering all the relevant documents used to support litigation. But with new technologies creating more and more channels for these documents to hide in, e-discovery (electronic discovery) has exploded. New e-discovery processes were introduced in December 2007 to reduce the overload of documents involved in litigation, but it seems more changes are needed, with the Australian Law Reform Commission (ALRC) currently reviewing the process of discovery for legal proceedings in federal courts.
"[A judge in the US] had 100,000 plus documents that the lawyers said were privileged, and he was going to have to go through and review every one of those 130,000 documents," Eddie Sheehy, CEO of Niux said. "Nobody can do that. You can't take up a judge's time like that."
Warren Dunn from Deloitte Forensic agrees. "To do a typical, what we call a linear review — a lawyer sitting down and going through every document — someone's going to take a gun to themselves."
According to Adamo, social media is making discovery even more complex. "The emergence of new technologies used by people is making e-discovery more complex. Social media especially is creating phenomenal difficulties because you have employees creating information in pockets that are not controlled by general corporate governance policy, on servers that are generally not owned by a company and can often really skirt the edges of a company's IP [intellectual property] or relevant business documentation."
"It's very easy to put something out on Twitter or in an SMS or email that arguably, might be as part of a general business conversation, but when we come back and look at IT and legal departments within a firm, they don't have the same controls over those data sources as they do over their standard email server. So the emergence of those new technologies is significantly complicating a normal firm's capacity to effectively manage an e-discovery."
The ALRC review is due to be handed in to the attorney-general by 31 March next year. It will focus on the management of discovery documents, limiting overuse of discovery in litigation and the impact of technology on discovery of documents. Ultimately, the review aims to ensure that the "cost and time required for discovery of documents is proportionate to the matters in dispute".
Warren Dunn, director, Deloitte Forensic
(Credit: Deloitte Forensic)
"If you look at the way electronic discovery is undertaken at the moment, the problem is the right information can be spread over what they call custodians or people. Even information about those custodians could be held in a number of locations," Sheehy said.
This vast array of sources, multiplied by the number of people involved, can make finding specific information very complex. Sheehy said that once all the documents have been found, they have to be reviewed to determine their relevance to the case.
"The bit which costs the most money inside an electronic discovery is where you have lawyers reviewing every one of those documents that have been thrown up because they hit the keyword. Now if you put your average lawyer's hourly rate looking through hundreds of hours of documents, you end up with a very large number."
The ALRC's review aims to simplify the process, including the costs and time needed to review each document, by limiting the staggering amount of information that can be included.
Sheehy believes changes to the system will not only reduce the costs of discovery, but will also increase the number of people who are able to afford litigation. "That very large number is the antithesis to actually bringing justice into a system. If you can't sue somebody because you believe your rights are being abused because of the cost, it all becomes a cost management thing rather than you are right or you are wrong."
However, even with plans to limit the overuse of discovery, technology is both the problem and the solution to simplifying the processing of documents necessary to any given case. "You've got new technology emerging that allows us to create and generate too much information, and as a consequence we've had to have new technologies emerge to manage that information," Dunn said.
"The technology they're now looking at is called concept searching, and what that does is analyses the content of each document and attempts to generate themes or concepts consistent with the document and then match those documents that have similar themes so you end up with eight or nine or 10 buckets of similar themes and then the lawyers can identify which theme they need to look at first. It doesn't eliminate the need to review documents, but it focuses their attention on what to look at first."
Sheehy agreed. "There is no alternative than having technology to somehow cull down the information," he said.