Past 5 years has witnessed paradigm, huge, and cultural shift amongst the progressive law firms in Mumbai, Delhi, Bengaluru and other metropolitan cities of getting away from paper-based communications and moving towards electronic standards. New technological tools are emerging to help solo, small medium and large firms navigate the incredible amount of data we generate every day, particularly in regards to litigation. Those firms that have resisted such shift are on the verge of dying or have already perished.
It’s becoming imperative that modern lawyers leverage technology to gain sense of the scope of evidence that’s available, as well as the costs, burden, and delay that would be associated with finding the best pieces of evidence. Time and cost are especially important as courts may be ruling on litigation issues, with those two factors as guiding principles. The production of electronic evidence is becoming overwhelming and so we have identified three requirements below that should help a law firm to narrow their
1. Forward and Backwards Looking
In order to advise the clients properly, solo and small firms need systems in place that can deal with litigation holds and backups—being able to access information already in storage, and preserve information going forward. Clients need a data management policy to determine what qualifies as evidence and must be kept.
This policy may be based on prescribed rules determined by industry standards or statutes, or as simple as advising on social media records (for example, advising a client not to delete Facebook posts). This solution should also work with clients’ existing data repositories—a major argument in favour of cloud solutions. Many businesses, from Fortune 500 giants all the way to the closely-held family business, are storing their records in cloud services.
E-discovery legal jurisprudence in India is still evolving. Electronic discovery or e-discovery refers to discovery in civil litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). Some of the techno legal aspects of e-discovery laws and regulation in India are being formulated rapidly. These include optical character recognition (OCR) legal issues India, e-discovery for social media in India, data rooms, legal compliances and merger and acquisitions in India, virtual data rooms and legal compliances in India, e-discovery for cloud computing in India, electronic discovery (e-discovery) challenges in India, etc.
E-Discovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
eDiscovery solution should also be capable of tracking compliance with litigation holds to prevent evidence spoilage and ensure that you don’t miss the preservation stage of eDiscovery. This involves tracking notification being sent to all responsible parties, and also logging their acknowledgement and agreement to comply with evidence preservation.
Cloud solutions definitely have a leg up over on-premise solutions in this regard; they’re cheaper and easier to roll out and provide a centralized hub that unifies your business applications from messaging to file storage, as well as giving IT (whether it’s a department of many or a department of you) the control and administrative capabilities required to govern and protect sensitive data.
2. Agnostic
The eDiscovery solution should be file-type agnostic — meaning it should be able to import as well as export data from and to a multitude of file types. The EDRM states that there are over 200 suggested file types for Electronically Store Information, including PDFs, image files, video files, audio files, and even the venerable Wordperfect. As new software solutions are introduced, file types will only increase exponentially, so your eDiscovery software should be able to adapt to emerging data standards as well—with the capability to present in native, near-native, image, or paper
3. Collaborative
eDiscovery is, at its core, a collaborative effort, requiring participation from both internal parties (staff, clients), and external parties (opposing counsel). Your eDiscovery solution should enable you to identify and share relevant and necessary information easily, while also recognizing and withholding privileged documents. The Civil Procedure Code in India should encourage communication and negotiation between parties on eDiscovery, including dates, formats, and methods of presentation. Look for a provider with the native capabilities to keep track of changing deadlines, and inline communication methods for easy notifications and sharing.
With the incredible amount of data human beings generate every day, a proper eDiscovery solution is no a longer a ‘nice to have’ for the modern litigator. Choosing the right solution will help ease the burden of Discovery for the firm and increase likelihood of success.
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