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UK: An Introduction to eDiscovery

Contributors:

Phil Beckett

Gary Foster

Alvarez & Marsal
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eDiscovery in the UK: Developments and Trends in 2024 

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 historical nature of disputes, and tends to be more pervasive and persistent than paper documents.

Managing data in an Era of Rapidly Evolving Technology 

The litigation support and eDiscovery space continues 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. With ever evolving and increasing data privacy regulations, organisations are often dealing with competing requirements.

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 cut through big data volumes to enable users to find the facts of their case, is a great example of how technology is driving efficiencies in the industry.

Ethical Implications 

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 

Collaboration software 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 nothing new to the eDiscovery environment; for example, many historic high-profile cases cite instant 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, 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 

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.

Competition Regulators 

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.

Disclosure Pilot Scheme 

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.

Importance of Sustainability 

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 in investigations into company failings while opening companies up to the risk of litigation.

Analysing Big Data 

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.

General Artificial Intelligence 

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, we are seeing early implementations of AI chatbots built into the eDiscovery process to try and answer the command “Show me signs of fraud in my document set”.

With AI’s “general intelligence” comes risk, and eDiscovery practitioners and technology developers are still working through how 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, whilst ethical questions posed will continue to be discussed.