Legal Technology Journal

E-disclosure is dramatically enhancing the way lawyers review and analyse potential evidence. A litigation support specialist at Allen & Overy shares her experience.

Recent developments in technology have changed the way lawyers need to manage internal and regulatory investigations, arbitration and litigation for their clients. Gone are the days where most evidence was provided to lawyers by clients in paper format, requiring paralegal teams to scour filing cabinets and warehouses for relevant documents. The need for business to have instant access to information has created a proliferation of instant or near instant forms of communication.

These include e-mails, electronic documents and electronic messaging and can be found on PCs, servers, USB keys, DVDs, PDAs, back-up tapes and many other electronic media. Allen & Overy LLP is an international legal practice with approximately 5,000 staff and 470 partners working in 28 major centres worldwide. Like all successful law firms, Allen & Overy is expected to deliver the highest quality service for its clients under tight timescales against the backdrop of ever increasing volumes of potential evidence to process.

Allen & Overy has always been a leader in the implementation of its Ringtail CaseRoom case and document management system. This system allows its lawyers to collaborate on any matter anywhere in the world. Three years ago, Allen & Overy was working with paper documents, scanning and manually coding them in order to upload them into its case management system for its lawyers to review. With the modern day demands this system needed updating – so Allen & Overy decided to tackle the issue head on and enlisted the services of PinPoint Global, an e-disclosure specialist.

What is e-disclosure? E-disclosure (also known as e-discovery and ESI processing) is the process of finding, securing, reviewing and providing electronic data for disclosure to parties to litigation, with some of it subsequently being used as evidence. Although the name stems from the litigation process, the term is now more widely applied to the treatment of electronic documents generally for litigation, arbitration and internal and regulatory investigations.

Simply put – it is the process of dealing with and analysing documents either created or stored in electronic format for production to other parties.

The business challenge

Allen & Overy identified five business challenges that the preferred solution had to fulfil.

• First, lawyers needed access to evidence quickly and the data had to be processed accurately so that the disclosure evidence would be unimpeachable.
• Second, volumes of electronic data are growing exponentially. In addition the sources of electronic data are expanding from simple e-mail and electronic files on servers, to evidence on files, USB keys, mobile phones, and instant messenger communications, etc. The solution had to be able to deal with the variety and the growing scale of the problem.
• Third, the lawyers wanted a supplier that had the appropriate level of technical expertise and ability to express themselves in a legal context using non-technical language. Finding a supplier with the right mix of these skills was essential, together with a mindset that was pro-active in identifying and anticipating issues before they arose.
• Fourth, Allen & Overy had made a substantial investment in its case management system, Ringtail CaseRoom and needed a supplier who could add value to that investment. This meant providing data in a format that took advantage of the features and functionality of Ringtail.
• Finally, being a global practice, Allen & Overy was dealing with an increasing number of international disputes and investigations.
• The solution therefore, had to be able to process multiple languages and allow lawyers to work collaboratively on global cases.

From paper to data

Another challenge faced by the Allen & Overy litigation support team was that historically, there were times when client information, especially e-mail, was reviewed by the legal team outside the Allen & Overy case management system through, for example, Microsoft Outlook because that was the quickest method of reviewing the data.

There is no legal review workflow built into Outlook, so the process of tracking, recording and checking the review was a laborious one. The system also made it difficult for multiple users to review the data concurrently. I was tasked to address these challenges. Whenever a lawyer asks us for something, they generally need it yesterday so speed and accuracy is of the essence. It is now much quicker to search and review potential evidence efficiently. Outlook was never designed as a legal review tool.

Cases are not restricted to the boundaries of a local office – as potential evidence can be dispersed as far and as wide as email communication. Cases have become more complex as potential evidence can be hidden through an elaborate maze of e-mail attachments, Microsoft Office files, phone calls and text messages. By providing our lawyers with innovative tools we can ensure that our clients are given the best possible service.

The solution

PinPoint Global is a software-based services company operating in the legal sector. It provides a complete e-disclosure service for legal and litigation support departments, corporate counsel and lawyers who want to extract evidence from electronic data and review it in a format that makes sense to them. The company originally came to the UK as Diskcovery London in 2004. Established with 12 years experience in the Asia Pacific region, the company rebranded in September 2007 as PinPoint Global.

PinPoint was uniquely positioned to offer Allen & Overy support that combined its technical and legal backgrounds. PinPoint was not only able to foresee potential problems but also provide workable solutions. Its approach was adaptable and compatible with other service providers in the relevant disciplines thus providing a seamless provision of services to the lawyers. Allen & Overy also took comfort from PinPoint’s indepth knowledge of the Ringtail product.

PinPoint Global demonstrated to Allen & Overy its best practice for modelling electronic evidence in Ringtail format. PinPoint prepared the data in an easy to read online format that allowed our lawyers to see all the evidence, including all attachments in a fully searchable way. At the time, no other supplier could demonstrate this capability, coupled with a strong understanding of Ringtail. This worked for all new matters but for projects that had data in Outlook or Lotus Notes systems, it was not just a case of moving forward from that particular point. We really needed to analyse at what stage each matter was up to and create an action plan for getting the data into Ringtail CaseRoom. In one case, the e-mail systems had been used to review the documents, Pinpoint went back to the documents as they were originally received to ensure the integrity of the evidence.

The key to transition, however, was doing this without losing 12 months of legal review work already undertaken by Allen & Overy lawyers. This involved a process of de-duplicating and cross referencing files to the original data, then reconciling the updated documents with the old versions. Finally, the fully reconciled, clean data was exported into Allen & Overy’s Ringtail system. This approach ensured the integrity of all the data. According to Greg Wildisen, managing director of PinPoint Global, ‘In order for law firms to best serve their clients’ interests, lawyers in the UK will need to have at least a broad understanding of the methods and techniques available, as well as the benefits and pitfalls of e-disclosure.’

‘Given that evidence in investigations, arbitration and litigation are increasingly likely to be found in electronic data, it is essential that lawyers understand the nature of the process of e-disclosure. Lawyers that understand the basic technical processes involved will have the advantage as they will be able to better guide their clients through the mire thus saving considerable time and expense in providing legal advice,’ he adds.

By using advanced e-disclosure techniques, Allen & Overy has saved valuable processing time. Greater transparency in processing time produces a number of commercial benefits:

• By processing data more accurately and in a shorter timescale Allen & Overy can also:
  a. provide improved capabilities on existing cases;
  b. deal with higher volumes of documents;
  c. assess their clients’ position more quickly to allow them to negotiate from a position of strength or to create strengthened pleadings; and
  d. provide a faster, more cost-effective and accurate service.
• Multiple lawyers, in disparate locations are able to view potential evidence simultaneously and work in a fully collaborative environment.
• Allen & Overy has been able to leverage its significant investment in the Ringtail CaseRoom system. All evidence, whether paper based or electronic can now be efficiently managed in the one system.
• Lawyers do not require additional training to benefit from the technical enhancements.
• Allen & Overy is more efficiently able to meet its obligations under the latest changes to the Civil Procedure Rules, requiring law firms to provide estimates for legal services before commencing work. (This has traditionally been difficult as the scope of work was in the past difficult to determine.) PinPoint’s e-disclosure service has now made this requirement easier to meet.

Top tips for selecting an e-disclosure solution

• Does the solution provider understand your legal environment? Do they have the combination of appropriate technology and consultative technical understanding of the issues you face?
• Will their workflow be flexible enough to allow for changing circumstances without the need for expensive re-work?
• Do they have local skills and processing facilities to meet the challenges of EU data protection laws?
• Are the overall results auditable and transparent so that any legal or technical challenges can be appropriately and definitively resolved?
• Is there complete transparency with costs or are there hidden disbursements and additional project management fees?
• Do they share your values to provide for an efficient, friendly and harmonious working relationship?

E-disclosure is an evolving field that goes far beyond mere technology. It gives rise to multiple, and as yet unresolved, legal, political, security, and personal privacy issues. Lawyers that have a solid understanding of the process will have the advantage in this changing landscape.

Jo Eates is a litigation support specialist at Allen & Overy LLP.