In a month when a Supreme Court judge ordered Seán Quinn’s family members to surrender passwords to their personal email accounts and the unfolding Petraeus affair at the CIA hinged on webmail messages, it’s hard to escape the conclusion that digital footprints leave a heavy trace.
Digital evidence plays an increasing role in Irish legal disputes, says Karyn Harty, a partner at McCann FitzGerald.
Electronic discovery, or e-discovery, is the digital equivalent of the legal process whereby relevant documents are brought to both sides ahead of a case.
“In the last three years, e-discovery has really mushroomed as an issue for practitioners, and not just in litigation. It’s also in the investigation side for all sorts of corporate clients,” she says.
Harty would not comment on the Quinn case but says it makes sense to consider electronic sources of evidence. “There is no doubt that people will commit things to email that they would never put in a formal letter and, for that reason, discovery is a very fruitful way of identifying vulnerabilities from a litigator’s perspective.”
A survey of 14 Irish legal firms by Ernst Young last year found that most cases now involve electronic evidence, but it is often not preserved in a forensically sound way – risking its admissibility – or else it is not collected efficiently, which risks lengthening the time and cost of discovery.
Many law firms now outsource the process of gathering digital evidence to specialist consultancies with the forensic skills and technology to tackle large volumes of data – to determine accurately when a document was created or an email sent, or to retrieve material even if it appears to have been deleted.
Larry Fenelon, managing partner with Leman Solicitors, says discovery can take up to half of the time in an average commercial court case.
“If you’re not prepared for discovery in a high-level dispute, your prospects of success in your defence or your claim are severely diminished,” he says.
Electronic evidence can be the difference between winning and losing – jurors interviewed after this summer’s Apple v Samsung court case said the contents of internal Samsung emails helped to swing the case in Apple’s favour.
To address what’s proving to be a complex area, six industry experts under the guidance of Mr Justice Frank Clarke are preparing a “good practice guide to electronic discovery in Ireland” for publication next year.
The guide will be aimed primarily at legal professionals, but observers say many Irish businesses would not be ready for e-discovery today.
“I’m meeting organisations on a daily basis which have an obligation – whether that’s to prevent data leakage or to be ready for litigation at some point – and they are completely unprepared for these events,” says Damien O’Rourke, a senior sales manager with the IT service provider ERS.
Evolving technology means people increasingly use smartphones and tablets to carry out their work in addition to traditional PCs. The growing popularity of cloud-based file-sharing services also poses a risk – that information becomes harder to obtain if it’s needed in a dispute.
“Not every case involves cloud data but there needs to be an assessment. It would be like ignoring all emails sent on a Tuesday,” says Simon Collins, senior manager of Ernst Young’s Fraud Investigation Dispute Services team.
Global research from Symantec found that 46 per cent of an organisation’s information is typically stored outside its own data centre and 14 per cent of business information is held on mobile devices.
All e-discovery in Ireland involves email searches but mobile devices are checked in just 66 per cent of cases and fewer than half consider external data sources for evidence, the EY survey found.
The growing e-discovery problem is making information management tools such as email archiving systems more prevalent. Businesses can also anticipate some of the issues by implementing good file storage processes, says Collins.
“Even a small company can do this: for each project, they have a folder that all the data gets stored in, with the project name. If it’s not a criminal case, discovery is about a best effort. It’s a case of saying, ‘I have made a reasonable attempt to gather all the documentation together’.”
For legal professionals, hopes are high for predictive coding, which uses a form of artificial intelligence to “learn” from a senior lawyer about the search terms being used, and automatically gathers documents it believes are relevant.
“The promise of it is that you can describe what the document looks like, click a button and say, ‘Show me more like this’. That could be, for example, an email to a customer, disputing a term in the contract. Messages will appear in the search even if they’re not using the same language or sent by the same people,” says Owen O’Connor, managing director of Cernam, a developer of digital forensics software.
Said to be faster than manual review – and therefore less expensive for clients – predictive coding has already been used in Britain and the United States. Harty believes the technology is sound and expects to see it used here soon.
“One school of thought is that nothing beats a manual view of documents. I would be of the school of thought where that’s probably true in an ideal world, but in the real world, where the cost for a client is so immense, we need to use technology better.”
For your information ‘It isn’t just about saving time and money’
Managing information better isn’t just about saving time and money in litigation; experts say it has business benefits in areas such as regulatory compliance or resolving internal HR matters.
“Having masses of information to search through is where your costs come in. By having a defensible retention schedule, you at least are managing the volume of information that you have to deal with as an organisation,” says Dermot Moore, an information governance specialist who has worked with many blue-chip firms.
“The other added advantage of that is, it’s better business. Information drives your organisation and it has a value in itself . . . You’re gaining knowledge about your business. Understanding the information you have and the context of it, and being able to articulate that to others, is the key to e-discovery,” says Moore.
Businesses of all sizes can address the issue through a mix of policies, procedures, employee awareness and technology, advises Colm Murphy, technical director with Espion, one of the largest e-discovery specialists in Ireland.
Deduplication technology – which deletes duplicates of the same item – avoids having to store multiple copies of the same information, and messages on smartphones should also be replicated in a central storage system, says Murphy. “You don’t want to pay a lawyer to read the same email over and over, nor does the lawyer want to.”
Businesses can use IT upgrades as an opportunity to start managing their information better. The controls should be appropriate to the data being stored, and firms need to inform their employees that this is happening, Murphy says.
"Think of it as a simple filing cabinet. If you just throw everything in there, it's like looking for a needle in a haystack. If you have an organised filing system, it has some logic to it. The better prepared you are, the less it will all cost." GORDON SMITH
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