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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.