Legal outsourcing could ease e-data mountain

IP lawyers are placing an ever-greater emphasis on e-discovery and document review strategies as the amount of electronic data sought in court proceedings swells. The news comes as lawyers admit that they have been surprised by the amount of information that needs to be retrieved when discovery turns to electronic sources. As cornerstones of the legal process outsourcing (LPO) sector, e-discovery and the review stages that follow it are likely to be stimulated by a continued rise in electronic documents.

Speaking to the ESI-Bytes website early this month, Cisco attorney Mark Michels revealed that, until he moved from private practice to litigation management, he 'had no idea what the expenses would become, or could become, in dealing with electronic information'. The need for cost-control compelled him to develop e-discovery strategies 'as a matter of survival'. What has changed, he said, 'is the proliferation of data, and getting your arms around it.'

According to Covington & Burling patent litigator Edward Rippey, who spoke in the same interview, key factors such as anti-trust issues, long product histories and lengthy marketing efforts lead to patent cases yielding 'millions of documents'.

Field Fisher Waterhouse IP partner Ian Craig told IP Review Online that the human element of document review is an essential component of case building. 'We just did a huge case here with a vast quantity of documents,' he said. 'They all had to be divided into categories of certainly relevant and certainly not relevant, and then that grey area in the middle that needed to be examined more closely. What you really have to do, as a matter of best practice, is agree the keywords you're going to search for with the other side, because once you have, those words will help you to suck out the most relevant details. In the end, there is no substitute for just looking through the material.'

Reviews of documents gathered prior to IP litigation are increasingly handled by legal outsourcing providers such as CPA Global, which can sort the material by relevance and employ sophisticated custom taxonomies. Craig feels that trust plays a major role in the relationship between providers and their law firm clients. 'At the end,' he said, 'there's going to be a partner looking at all the documents.'

IP Review Online asked Craig's colleague David Knight whether he could see an e-discovery mountain on the horizon. 'It can certainly mushroom when you get into the detail of confidential information claims, when you need to do an historical trawl of what was said to who and under what circumstances; or patent entitlement claims, which deal with a range of similar questions,' he said. 'In the US,' he added, 'the orders of magnitude are very different from what we see here.'

Despite Knight's thoughts on territorial differences between the US and UK, the prospect of a British e-document glut has been highlighted as a looming problem. In the interim report of his Civil Litigation Costs Review, published in May, Lord Justice Jackson wrote: 'Communication has become much easier and cheaper than before and is therefore far more extensive. Electronic communications are more readily preserved and retrieved, even after deletion.'