UK: An Introduction to eDiscovery
eDiscovery in the UK: Developments and Trends in 2023
eDiscovery, or eDisclosure, is an essential phase of not just litigation, but also investigations, regulatory enquiries, compliance assessments and increasingly arbitrations. Data is the lifeblood of most modern-day organisations, and although it is not the only source of information relevant to an investigation, it can provide an unbiased and accurate reflection of historic events. Data can be more reliable than the human mind, especially given the history of disputes, and tends to be more pervasive and persistent than paper documents.
Structure and unstructured data
Given the use of technology throughout the workplace and beyond, data exists in many different forms but can be grouped into four categories: unstructured, structured, semi-structured and social.
Unstructured data refers to information where the content does not exist within a pre-defined form and is generally text-heavy. It typically comprises emails, documents, spreadsheets and presentations.
Structured data refers to information where the content does have a pre-defined form and is generally in the form of “databases”, such as financial and accounting systems or customer relationship management systems.
A hybrid of structured and unstructured data, referred to as semi-structured data, can also be prevalent within an organisation. This is where the content tends to be unstructured, but it is bound by a more solid structure. A typical example of this would be chat or instant messenger messages, which are becoming more widely used in certain industries and therefore should not be overlooked in the context of a dispute or investigation.
Social data refers to data that is shared publicly or shared within a more restricted context within an organisation or a circle of friends, for example. Social data is stored within a central repository and includes not only the content itself but also information that is linked to this content, such as “shares”, “likes”, location, time posted, etc. Although the most recognisable sources will be external (e.g. Facebook, LinkedIn, etc), organisations are introducing these technologies via internal social networking services, used for private communication within an organisation, and thus they need to be appropriately considered.
Managing data
In the context of a dispute, the exact way that data is managed and implemented will vary from case to case. That said, there are various frameworks setting out the key stages of such exercises. The most widely used is the Electronic Discovery Reference Model, which was designed to meet the requirements of legal discovery in the USA but has equal applicability in the UK and globally.
The litigation support and eDiscovery space continue to evolve to keep pace with technology advancements and social trends. New challenges include growing digitalisation, with the population using more devices and creating more data than ever. In addition, companies need to continuously drive value from data while navigating litigation and data privacy risks alongside increased regulatory activity.
Positively, technology continues to advance rapidly, allowing users to collect and analyse huge volumes of electronic data without costs or complexity growing linearly. The advancements in Artificial Intelligence (AI), which helps to cut through big data volumes, helping users find the facts of their case, is a great example of how technology is driving efficiencies in the industry.
The ethical implications of AI is one area being closely monitored this year, including the unconscious biases that unintentionally inform AI models and how they behave in the real world. Of particular concern is the phenomenon of AI “hallucinations,” defined as a confident response by an AI that does not seem to be justified by its training data, and whether they are potentially more damaging than we are currently seeing with widely used and popular AI chatbots.
Collaboration software such as Microsoft Teams and Slack continue to generate vast volumes of data, and as predicted these sources of information have become the highly relevant material in many of our cases over the last year. Instant messaging data is not anything new to the eDiscovery environment; for example, many historic high-profile cases cite Bloomberg Chat messages as the key documents.
However, the lack of caution shown by those being investigated when using these newer collaboration tools is surprising. This may reflect the wider adoption of these software in the hybrid working environment, the blurring of work-life boundaries, and little training to employees around the risks associated with these technologies. The result is an increase in legal, compliance and risk challenges for companies.
That continued blurring of the lines between home and work is also leading to more mobile phone applications being key to cases. As individuals become increasingly data aware, we have seen an increase in the use of secure communication applications such as Signal and Telegram, which adds additional complexity around sound forensic collection and analysis techniques.
The future of eDiscovery
We are also seeing a greater number of disputes of a technical nature and more regular evidentiary challenges within an eDiscovery process. Digital evidence is now at the forefront of many disputes meaning the need for forensic collection and forensic validation is vital.
Admissibility and authenticity of digital evidence, including social media posts, mobile communications, and data from emerging technologies like blockchain or Internet of Things (IoT) devices, have become important legal considerations. The work of an experienced forensic examiner has become critical to these processes, providing expert opinion on the validity of data and metadata.
Over the past two years across the UK and Europe we have seen competition regulators intensify their investigative activity, launching investigations through dawn raids or via significant information requests. Competition regulators also have access to industry-leading eDiscovery tools and are therefore able to work smarter than ever before. Furthermore, they have the authority to deploy remote forensic collection software across company systems, allowing them to efficiently collect and prioritise data for the investigation, without any physical interaction.
Companies are reacting to these new approaches, ensuring they have plans in place for a “remote dawn raid,” among other measures. We also see eDiscovery practitioners playing an important role given the digitalisation of regulatory investigations. In the area of merger control, we have seen the UK’s Competition and Markets Authority (CMA) block deals as they regulate competition in the market while we have seen the European Commission give the green light on the same deal. A blocked deal can lead to appeals and further legal work, all of which may require additional eDiscovery expertise to support.
Closer to litigation, the Disclosure Pilot Scheme (DPS) became a permanent part of the court rules in 2022. Known as Practice Direction 57AD, the DPS was developed in response to concerns that the previous framework for document disclosures in legal cases needed to be modernised.
The initial pilot, introduced in 2019, was designed to mitigate some of the “excessive costs, scale and complexity” experienced by parties under the previous framework. The pilot has been subject to continuous feedback and refinement over the last couple of years to ensure that it meets its aims.
We have continued to work with companies through the iterations of the DPS and now with Practice Direction 57AD. From our experience, early involvement of data experts has always been key to an efficient disclosure exercise, particularly on many of the complex data heavy cases that tend to take place in today’s digitised world. This is very much in line with the guidance set out in Practice Direction 57AD. Similarly, having a subject matter expert or dispute expert involved early on allows the forensic expert to understand the data quickly. They can also advise clients on what documents will be useful at trial, ensuring that the collection and review methodology are aligned, and that no one is having to claw around later looking for that vital last piece of evidence.
We continue to see an increasing convergence of eDiscovery, Information Governance and Data Privacy. We have seen this materialise as organisations reflected upon the ongoing enforcement in Europe and grappled with the complexities of new data laws across the globe. An added complexity is the ongoing accountability that Companies’ Directors face, particularly in Europe where the EU has updated corporate governance rules.
With many initiatives aimed at promoting responsible business practices, there has been a growing recognition of the importance of sustainability within corporate governance. Since 2014, the Non-Financial Reporting Directive has required companies falling within the scope of its application to include a non-financial statement in their annual reports outlining their policies, risks and outcomes related to environmental, social and employee (ESG) matters, as well as with respect to human rights, anti-corruption and bribery issues. The continued monitoring and regulation of these areas is driving an increase into investigations into company failings while opening companies up to the risk of litigation.
In our introduction we highlighted the impact AI is having on analysing big data. AI is now embedded into the litigation support offering and can perform a range of tasks in a cost-effective manner. This may include, but is not limited to, machine translation, image recognition and image labelling, identification of Personable Identifiable Information (PII) and in its most used form, the ability to predict document relevance.
The use of AI in situations where reasonableness and judgement are key will also be closely watched, especially as these tools continue to get smarter or evolve into “general artificial intelligence.” For example, an AI chatbot built into the eDiscovery process may one day be able to answer the command “Show me signs of fraud in my document set,” and we are aware of such implementations being discussed by eDiscovery software vendors.
With the “general intelligence” comes risk, and eDiscovery practitioners and technology developers are still working through how that advanced AI will be used and managed. The UK government has also been involved recently, setting out a white paper to provide guidance on the security and transparency of AI adoption. We predict AI will continue to have an impact on how the industry can cut through the noise of large data sets and ethical questions posed will continue to be discussed.