On Wednesday 19th of March, E-Discovery Consulting and EY welcomed over 100 participants from the New Zealand legal fraternity to the 2nd Annual New Zealand eDiscovery Conference. The event attracted senior lawyers, barristers, in-house legal counsel, government departments and regulators – most organisations involved in litigation were represented in some capacity.
The Conference has now developed into New Zealand’s leading eDiscovery and legal technology event, providing a platform for legal professionals to develop their knowledge in this evolving area.
The programme built on the success of the inaugural 2013 event, specifically tailored to suit the New Zealand e-discovery landscape and featured leading industry experts and practitioners from New Zealand and abroad. Considerable investment went into organising the event to ensure all attendees can learn more about the latest best practices and tools available to assist them with the challenges associated with eDiscovery.
Keeping the Judge Happy
Judge David Harvey opened the Conference with the judicial keynote, by providing a judicial perspective of eDiscovery. He rallied the participants to challenge their “traditional thinking about documents” imploring them to instead think about “information” because as a “single entity, the document is nowhere”.
Judge Harvey left all in attendance in little doubt about the importance of the eDiscovery process and the requirement to understand the technologies. Judge Harvey expressed how “Lawyers and Judges are going to have to become intimately aware of the technologies that are available and of the technological processes that can underlay the discovery process if the advantages of cost reduction and proportionality that underlie the rules are to be achieved”.
Like very few other judges, Judge Harvey was able to provide a practical overview of the tools and practices that are all available to assist litigants in the eDiscovery process. He reinforced how the New Zealand discovery rules encourage parties to reach agreement on discovery issues, with the Discovery Checklist providing a framework that identifies potential tools and methods that must be consulted on all matters.
In addition Judge Harvey impressed on attendees the importance of making reasonable steps to keep electronic information in its native electronic file format. This included the “don’t image documents until absolutely necessary”. Judge Harvey outlined how the discovery checklist itself highlights ways to reduce some of the listing and exchange costs –
“to reduce unnecessary costs of listing documents parties are encouraged to:
a) Use native electronic versions of documents as much as possible; and
b) Use the extracted metadata from native electronic documents instead of manually listing documents; and
c) Convert documents to image format only when it is decided they are to be produced for discovery; and
d) If document images are to be numbered, only number those images if they are to be produced for discovery.”
EDRM and insights from the US
Tom Gelbmann from Tom Gelbmann & Associates, LLC delivered the International keynote in an address that looked at Meeting the Challenges of eDiscovery – learnings from the US. Being a co-founder of the industry standard EDRM (Electronic Discovery Reference Model), Tom Gelbmann examined each stage of the EDRM and the development of eDiscovery practices in the US.
The EDRM focus was a refresher for the New Zealand audience as the inaugural New Zealand eDiscovery Conference went back to the basics of eDiscovery by looking at each stage of the EDRM. Tom provided valuable insights from his many years working in the US, and from his practical experience the importance of eDiscovery being an iterative process.
What evidence does your client have and where is it hiding?
Brian Cusack from AUT University contemplated the different sources and information that organisation must now manage. In addition Brian also outlined what is involved in him being the joint editor on the ISO 27050 International Standardisation for eDiscovery.
Brian took us behind the scenes looking deeper into what information a client may now have. Along with other sessions during the day, this session highlighted the importance of lawyers having a greater understanding of the information held by their client – and then ways to collect and review that information to find what is really important.
Forensic focus
Tom Gelbmann moderated a panel featuring three leading professional services firms looking at the forensic perspective of eDiscovery. Jason Weir of Deloitte, Chris Budge of KPMG and Sarah Cordner of EY all featured looking at the better practices in preserving and collecting evidence.
The panel was well received by the audience as many of the topics covered hadn’t been explained previously in plain English to many lawyers. Like many of the sessions throughout the day, the panellists stressed the importance of thoroughly planning an exercise at an early stage. The panel discussed how important it is to get expert advice as the identification and collection of electronic material is becoming increasingly complicated for the IT within an organisation and their external legal team. It is simply becoming too costly to seek expert advice after the fact and help rectify issues.
The concept of a forensic session with all of the leading professional services firms came about as I wanted them all to play a part and share their knowledge in a truly industry event. The session went down perfectly with many common issues discussed and not a hint of a sales pitch (or point scoring), that’s if you disregard the 0800 KPMG reference from Chris Budge !
A litigation support professionals tips for managing eDiscovery
Alan Watkins from Symantec provided an in-depth look at the area of litigation support from the position of someone that has worked within a lawfirm and for a service provider. Alan provided an overview of how he has evolved through the eDiscovery industry that had its origins in scanning and coding of documents.
The session provided a practical overview of all the stages of the eDiscovery process, with Alan outlining various tips from his experience of what it takes today to manage an eDiscovery exercise. He looked at the role of a litigation support professional within the process and summed up by determining to be a good litigation support professional, what is required is – the ability to communicate, broad understanding (not deep) of the technologies, ability to negotiate and to listen.
A partner perspective on managing large matters
Polly Pope a litigation partner at Russell McVeagh presented a session that drew upon her experiences of the best practices in managing large matters. As well as the judicial keynote, this presentation was probably the most well received by an audience that had a high proportion of lawyers.
With many of the sessions being based around the issues of managing electronic information and the tools available, Polly gave her experiences from a practical perspective.
During her presentation Polly highlighted the following points –
- The importance of the work at the outset of the matter
- Start with the people, utilise interviews and questionnaires for the client – understanding the key facts, issues, date ranges and key individuals, as well as assessing the data that they hold and where it is
- Ensuring your client is aware of the process and the stages involved
- Engage specialist expertise when required to assist with the eDiscovery process
- Utilise the aide of technology wherever possible to meet your goals
- In liaising with the other party, don’t be afraid to take the lead and go first.
A regulatory perspective
Paul O’Neil from the Financial Markets Authority presented a regulatory perspective. The session explored the role of the FMA and provided an insight into how they manage information into today’s digital world.
The regulatory session was an interesting perspective for those that have always been on the other side of the fence. Paul provided an insight into how the FMA undertake investigations and eDiscovery exercises, some of which may be different to how law firms operate. The session provided an overview of the tools the FMA use in their work, from their analysis of information, through to how they reviewed information and presented evidence in the courtroom.
eDiscovery done badly is expensive – moving away from traditional practices
The panel discussions delved deeper into how it is important to move away from some of the traditional approaches if eDiscovery is to be managed more proportionately and cost effectively.
The Emerging Technologies panel featured leading technology providers in Greg O’Reilly of Recommind, Tim Nelson of FTI Consulting and David Quist of Nuix. Collectively they discussed how options like concept searching, near duplicate technology and predictive coding can all assist the legal team get to the important information cheaper, quicker and more accurately.
Even though many in the audience may not have currently been using the technologies, they were left in little doubt that traditional approaches that involved considerable manual work would only lead to increased eDiscovery costs. The questions I received post Conference about how predictive coding works and where can I look to explore further, at least means there is considerable interest from a market that is quickly having to embrace more effective options to tackle their eDiscovery challenges.
The Emerging Technologies panel lead onto the Proportionality and Pricing eDiscovery discussion, featuring Jo Sherman of EDT, Martin Flavell of Law In Order and myself.
The discussion emphasised how the ever increasing volumes of electronic material makes the assessment of proportionality more challenging. The panel focussed on how there is now more upfront work required to plan the process to suit the specific requirements of the matter. Investing the time at the outset can have considerable cost savings later in the process – even on the smallest of matters the time spent at the outset can provide considerable value later in the exercise. Part of this planning will involve investigating what are the right tools for the exercise and understanding the costs of each stage of the process to ensure the client is provided more transparency (and certainty) around the costs of the eDiscovery process.
There is not a one size fits all approach when it comes to eDiscovery. There are many tools available that are evolving all of the time. Gone are the days that firms all required one form of software – all products now talk to each other. Some of the more advanced tools (many were sponsoring the conference) are able to provide New Zealand firms with a significant competitive advantage over legacy options. The NZ discovery rules are software neutral with any software product easily being able to comply and exchange their documents with other parties in a usable format.
Electronic Courtrooms
The last session of the day fittingly looked at the final stage of the EDRM process with Mark de Bruyn of NuLegal providing an overview of the benefits of Electronic Trials.
Mark illustrated the substantial benefits that a fully integrated electronic trial can bring to the court process. He reinforced the point that it is not just the technology, but the people that are the most important part in the electronic courtroom process. The session emphasised some of the pitfalls of a DIY approach to an eTrial (or a not fully integrated approach), which can detract from the effectiveness of the use of technology in the courtroom.
The final curtain
This year the Conference concluded with a drinks reception. Attendees, speakers and sponsors alike networked, discussed the events of the day and explored potential future opportunities.
An event of this nature is not possible without the support of our sponsors. We appreciated the support of Nuix, EDT, FTI Consulting, InfocentriK, Symantec, Recommind and Law In Order in sponsoring the event. Speaking with the sponsors since the event many have made new contacts to help showcase their offerings in a market that may not have previously been exposed to the level of services and tools that they offer. Most sponsors have already expressed an interest in being involved again in 2015.
Finally thanks must go to Warren Dunn of EY in chairing the event once again, which with his ‘finesse’ ensured an enjoyable day for all involved.
Plans are already underway to take the 2015 event to another level. Watch this space to find out more, as the 2015 date will be announced soon.
