Guidance Software has produced the first edition of a new quarterly magazine called Real eDiscovery. The costs and risks of compliance with the demands of litigation discovery and regulatory investigations were going up the corporate agenda even before the recession struck, and Guidance is well-placed to help large organisations take some of that cost in house as they – government departments, corporates and law enforcement agencies alike – struggle make or repel the claims and investigations which recession brings.

EnCase eDiscovery is a platform used within organisations to collect data across the network in a systematised, repeatable way. If, as seems almost certain, demands for evidence increase several-fold over the coming months, the argument for taking this process in house increases correspondingly – put simply, the investment in the software and the skills will be recovered more quickly if there are more demands for data to be collected.

In any event, Guidance Software’s new Pay-Per-Use in-house Discovery pricing model, launched this year, now allows organisations to use EnCase eDiscovery on a case-by-case basis. The original pricing structure involving a capital purchase remains the main – and, in the long term across many cases, the cheapest – way to buy EnCase eDiscovery, but the new pricing model allows companies to tailor their outlay to their use of EnCase. It was a timely launch, given the events which followed it.

US companies have a fairly high motivation to collect their data defensibly – they face sanctions for defective discovery, quite apart from the short timescales which the Federal Rules of Civil Procedure lay down for what they call the “meet and confer”, when parties must discuss their sources of (mainly electronic) data and documents.

It would be a mistake for UK companies to think that they are immune from such pressures. We too have an obligation to discuss electronic sources of data at an early stage in the proceedings (Paragraph 2A.2 of the Practice Direction to Part 31 CPR. That has seen new prominence following the order made in Digicel (St Lucia) v Cable & Wireless (see Case law at last on scope of reasonable search. It will be extended further by the Technology Questionnaire which a group of us, at Senior Master Whitaker‘s request, are drafting.

Perhaps more influential than either of these is the new spotlight about to be thrown on litigation costs by the inquiry which the Government has asked Lord Justice Jackson to make (see Lord Justice Jackson to head litigation costs review). The inclusion of an economist amongst the panel of assessors is likely to flush out where the costs burdens actually lie – not least the difference in the start-up costs of those who are and those who are not able to deliver properly-collected data to their lawyers.

Guidance are extending the scope of EnCase eDiscovery in this area with the launch, expected in December, of EnCase Legal Hold, which will integrate with EnCase eDiscovery to notify custodians of the need to preserve documents and to manage and track the collection. We may not attach the same significance to formal legal holds in the UK as they do in the US, but the principle – the containment of the risk of loss or destruction of evidence after notice of a claim – is applicable here also. Quite apart from anything else, a premium attaches to being able to collect data quickly and efficiently.

The new magazine includes an interview with Andrew Drake, Assistant General Counsel in the Corporate Litigation Discovery Management Unit at Nationwide Insurance. Andrew Drake was a participant in an interesting session at LegalTech in New York this year (see Guidance on the human factor in eDiscovery ) which turned into a debate as to the respective roles of in-house and external counsel. We had not then started to digest the implications of the Qualcomm v Broadcomm sanctions judgment of a few days earlier (see The impact of Qualcomm for UK lawyers). There is more than just the costs at stake if the data collection is badly done.

The magazine also includes an article called Planning and Paying for eDiscovery. Some of what is said there is peculiar to US litigation or, at least, has more resonance there than here. Note, however, the emphasis on long-term planning – at CFOs looking retrospectively at overall budgets, and insurance companies rewarding investment in technology with lower premiums. The arguments are deployed, reasonably enough, in support of using EnCase eDiscovery. They apply more widely as well.

The same is true of the other articles – if you mentally strip out the references which are specific to the FRCP and its associated terms of art like “spoliation”, you are left with a clear set of steps and stages which are no less applicable in the UK as in the US. The over-riding terms are “process” and “co-operation”, between them a recipe for a coherent and cost-effective approach to data collection in any jurisdiction.

If you are not convinced about this, try inverting the suggestions – dispense with any process for managing putative disputes and have no system for co-operation between internal management, IT and legal staff on the one hand, and external lawyers on the other. How does that sound as a recipe for cost-effective – never mind defensible – data collections?

Contact Guidance Software in the UK:

Lawrence Pender laurence.pender@guidancesoftware.com

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