Australia: eDiscovery: why lawyers are snails when it comes to technology

Last Updated: 26 October 2016
Article by Neeraj Chand

Are lawyers snails?

Most articles on eDiscovery focus on the potential of the technology to transform litigation, and explain how it can save lawyers time and their clients money.

However, few discussions point out that things have moved at a snail's pace in the world of eDiscovery over the past 20 years.

Quite frankly, I'd rather eat my own head than sit through one more conference where everyone delivers papers on how technology is revolutionising the way law is practised and how law firms need to innovate or face extinction.

Interestingly, no one ever examines why the pace of change has been so slow. Instead, they sweep the very large elephant in the room right under the carpet. I guess everyone hopes that if we keep talking about how technology can transform things, the lawyers will eventually catch on and drag themselves into the 21st century.

I'm starting to have my doubts about the wisdom of this strategy, though, since the pace of change remains slow despite two decades of endless discussion. After all, the only change in eDiscovery that everyone has embraced is the shift from physical barcodes to digital stamps.

What is eDiscovery and how has it transformed litigation?

Traditionally, life for lawyers running a discovery was straightforward. All the documents were paper and, as a result, they were discovered in hard copy. It is true that the process was usually tedious and painful, involving large teams of junior lawyers sitting in dingy basements reviewing endless folders of documents.

It was also often inefficient and costly. Usually, more documents were discovered than were absolutely necessary because the junior lawyers working on the case didn't fully understand the issues and so couldn't distinguish relevant from irrelevant documents.

With the rise of digital documents or electronically stored information (ESI) (such as emails, Word documents, spreadsheets, PDF documents, voicemails and text messages), the discovery process became more complicated. It is now estimated that 93% of all documents are generated in non-paper form, which means the vast majority of discoverable documents in a case will be electronic. Along with this comes the murky issue of metadata, something that few lawyers understand.

Around the time of the emergence of digital documents, technology was developed to conduct the discovery process via digital platforms. This technology formed the basis of the software platforms we currently use to run what we now call eDiscovery.

eDiscovery has the potential to remove much of the tedious work from discovery that most lawyers regard as beneath them, because the software has the ability to undertake the following functions:

  • Identification
  • Preservation
  • Collection
  • Processing
  • Reviewing
  • Production
  • Presentation.

Potentially, this means that only high-level review and analysis will need to be undertaken by lawyers because around 90% of documents can be culled during the electronic reviewing process.

As a result, you would think that both lawyers and their clients, who shudder when you mention the word 'discovery', would embrace eDiscovery.

Of course, they haven't. At LitSupport, we estimate that only 10–15% fully engage in eDiscovery, as distinct from merely using components of the process.

How has eDiscovery evolved over the past 20 years?

Unsurprisingly, there have been significant improvements in the technology behind eDiscovery, especially in the areas of early case assessment (ECA), technology assisted review (TAR) (or predictive coding) and artificial intelligence.

Back in October 2009, at the International Quality and Productivity Center (IQPC) 'eDiscovery Australia' conference, the key message from The Hon. Justice Byrne (of the Supreme Court of Victoria), The Hon. Justice Gzell and Associate Justice MacReady (of the Supreme Court of New South Wales) was that cases which are dealt with electronically are cheaper, quicker and easier to manage.

Has any of this made a difference to the mentality of lawyers working in private practice when it comes to discovery?

No.

Although using the latest techniques associated with eDiscovery could save lawyers a huge amount of time, as well as thousands of dollars in legal fees for their clients, we are still living in the era of teams of junior lawyers wading physically through thousands of folders of documents.

Why lawyers prefer paper

There are multiple reasons why lawyers prefer paper and resist moving into the digital era.

First, law is a conservative profession and lawyers tend to be risk averse. As a result, they prefer to stick with what is familiar. Paper is very familiar. In addition, it's difficult to achieve any kind of change in a law firm simply because a partnership is not a business structure known for embracing change.

Second, lawyers like paper. After all, it is all most of them have ever known. Even at law school, lawyers still study books made of paper. Once they enter the profession, they are surrounded by paper and generate copious quantities of physical documents. The clichéd image of the partner office filled with piles of sloping books and papers about to crash to the floor isn't far off the mark.

Third, lawyers are not comfortable with new technology. They are suspicious of it, especially when it is applied to serious legal procedures such as discovery. They struggle with the concept that software could do a better job of scanning documents than a junior lawyer freshly graduated from one of the country's most prestigious law schools.

Fourth, lawyers are not well informed when it comes to technology. Most of a lawyer's energy is spent understanding and applying the law. As a result, they have little interest in understanding anything that falls directly outside their primary concern. New technology is outside their direct frame of reference. Yes, they like to be seen as embracing technology. (A remarkable number of firms have totally useless apps that clients can download from their websites.) However, I would argue that the way lawyers engage with technology is very superficial.

Fifth, the myth persists that it's expensive to purchase the software associated with eDiscovery and hosting documents, even though costs have dropped significantly in the past decade. In 2005, you would have paid A$2500 per gigabyte for processing data. Today, you're looking at around A$300. Firms can now buy software licences based on the volume of documents. Nevertheless, most lawyers are unaware that eDiscovery is much more affordable today, even for smaller matters.

Finally, every lawyer knows that having a room full of junior lawyers reviewing documents is a great way to make money. After all, if you bill a client by the hour, the more time you spend on a task, the more money you make. For that reason, it is hardly surprising that many partners feel that adopting labour-saving technology is something they should avoid doing for as long as possible.

Why it will be clients and the judiciary that force lawyers working in private practice to embrace eDiscovery technology

In Australia, I predict it will be clients and the courts that force law firms to embrace technology, especially when it comes to discovery.

As corporate and government clients realise that there are huge savings to be made if their external legal service providers fully embrace eDiscovery (from using early case assessment (ECA) to the processing and presentation of data), things will start to change.

The following superior courts have implemented practice notes that require parties to use technology to manage the discovery process:

  • Federal Court of Australia
  • Supreme Court of New South Wales
  • Supreme Court of Victoria
  • Supreme Court of Queensland
  • Supreme Court of South Australia
  • Supreme Court of the Northern Territory
  • Supreme Court of Western Australia.

In the case of the Federal Court's Practice Note CM6: Electronic technology in litigation, an order may be made for discovery in electronic format in cases involving 200 documents or more. This practice note is often cited as a model for a sensible approach to eDiscovery because of its simplicity and effectiveness.

Will lawyers be dragged kicking and screaming into the 21st century?

I am convinced that, in the next five years, lawyers will be forced to embrace the technology associated with eDiscovery.

Logically, it should be small and mid-tier firms that lead the charge into the world of eDiscovery because it will not only to save time and ensure that their clients receive better, more cost-effective outcomes in their cases but enable them to compete with the big end of town.

However, for the reasons specified above, I suspect it won't be lawyers working in private practice that drive this change. Even as fixed-fee billing becomes more common and lawyers should be looking to technology as tool that can help them become more efficient in the way they run matters, they will continue to cling to paper.

Instead, lawyers will be pushed to use eDiscovery and the associated technologies because the judiciary and clients insist on it.

In short, the legal snails are going to be forced to slide into the 21st century.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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