Easing the burden

As corporate communications increasingly involve e-mail and other electronic documents, electronic disclosure in disputes is occurring more frequently. Depending on the jurisdiction and the matter, the disclosure of electronic materials may be mandatory. Even where not required, litigation teams are increasingly taking advantage of the latest search and review technologies to prepare the case using electronic materials.

Materials in any matter are likely to be sourced from individuals' desktop and laptop PCs, and work e-mail accounts. These sources, despite corporate rules and policies, are likely to contain irrelevant personal data, including banking and health information, communications with friends, and music files. When collecting electronic evidence it is essential, therefore, that companies and their lawyers observe applicable employment, privacy and data protection laws, while also heeding court orders and considering the company's legal needs.

Disclosure, Data Protection and Privacy

Lawyers must be aware of the rules concerning disclosure in the individual case. These may include court rules of general application, such as CPR 31 and its associated Practice Direction in England. There may also be specific rules and instructions for cases before the particular court, arbitral tribunal or other body, as well as directions specific to the particular matter.

Disclosure rules and orders, and the obligations they create for parties, must be taken seriously. Although electronic disclosure is a relatively new phenomenon in Europe, its importance is growing as relevant documents are increasingly likely to take electronic form. Lawyers and their clients must understand their obligations as well as the challenges those obligations, and electronic data, can pose: forensically sound imaging of all of a company's media may be required, and an expansive view of what constitutes data may be needed. A disclosure order may cover not only documents on servers or employees' hard drives, but also material on employees' portable hard drives, USB drives, DVD/CDs, PDAs, mobile phones etc—and it may be to a party's advantage to push for the production of such materials where an opponent is thought to have useful material in such forms.

Companies and their lawyers must comply with all applicable privacy and data protection laws. In Europe, these may derive from EU law, as well as each country's unique national laws. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, concerning data protection, is key and has been transposed by all member states. On the national level, additional data protection rules may apply, as can various privacy and employment laws. In France, for example, trade unions and representatives are likely to be involved in the physical data collection to ensure the employee's rights are not violated.

Privacy and data protection laws may affect whether, where and how data may be processed and whether, how, and to where they may be transferred. These laws may also prescribe procedures for notifying employees or clients that their data are being handled, and instructing for the provision of written procedures offering employees the ability to learn more about the processing or obtain redress. Technological solutions, such as keyword culling of documents before they are loaded into a document repository for review and the automatic generation of reports concerning the types and locations of files involved in an electronic disclosure exercise, can help companies to satisfy these requirements.

Lawyers should expect their external experts to work with them and their corporate clients in ensuring compliance with applicable rules, and to provide advice regarding the technology- related contents of employee notifications. The use of experts in the preliminary stages of a case will likely assist later when electronic evidence needs collecting, reviewing or producing in line with relevant laws.

Experts should also be able to support any claims in court. This can range from confirming the appropriate methods through which evidence was collected, searched, reviewed and produced in line with such laws, to forensically clarifying the what, when, where and how of computer-related activity. Technical experts should be able to explain the processes involved and, via their handling of on-site data collection, minimise the impact on staff.

Managing Expectations

Ideally, in-house legal teams and their external lawyers should manage the expectations of all of the company's employees well in advance of litigation. Clear language in each employee's employment contract should warn that an employee's work computer, its electronic contents and messages sent from it, are company property and may be reviewed or disclosed (as permitted under applicable laws) in connection with legal matters. As a matter of policy, companies should take and enforce a firm, clear position with respect to the handling of personal information and the transmission and downloading of jokes, personal photographs etc.

Employees should be instructed to organise (and, where appropriate, categorise and index) documents in a way that allows others quickly and easily to isolate documents that relate to a particular matter or issue. This will not prevent employees from deliberately concealing or obscuring the nature of a document but it may save time and cost in less extreme cases. The creation of solid indexing and useful metadata has day-to-day benefits to the organisation and may be a valuable tool when a dispute arises.

By introducing policies and involving experts before or at the onset of litigation, lawyers are helping themselves and their clients to ease the burden of managing electronic evidence. In an environment where competitive advantage is crucial, this is one way of improving the service to an increasingly demanding client base.

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