publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/518940
ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG 30 E-DISCOVERY/E-DISCLOSURE IN THE EU ADDITIONAL CHALLENGES • TAR AND PREDICTIVE CODING: Most litigators have heard of predictive coding and technology- assisted review (TAR), but some are reluctant to embrace the technology and others who embrace it do not appear to understand it fully. They assume the technology can always be used without giving thought to the nature of that data set. For example, they might expect it to "work its magic" even when the data set consists primarily of manuscript scans or extensive spreadsheets. • NEW DOCUMENT TYPES: There are rich potential sources of evidence not routinely considered by litigators in commercial disputes. The exponential increase in the use of instant messaging and social media networking sites suggests that much of the same evidence-rich material traditionally found in email messages has now moved to the "new" media. • DIFFICULT DOCUMENT TYPES: Many lawyers are frustrated by dealing with difficult document types, such as audio and Bloomberg chat sessions. Some interesting software is emerging to help simplify review of these kinds of materials, but they will have to evolve further before they have the same perceived stability and effectiveness that predictive coding is providing. • COSTS AND PROPORTIONALITY: A major topic in English proceedings is costs, and we expect this is true in all member states whether they are common or civil jurisdictions. A senior English judge recently delivered a judgment heavily criticizing a party's estimated costs (incurred and projected) in an ongoing matter, making it clear he saw the costs as plainly disproportionate to the amount in dispute. What is worrisome is that the court seemed to base its assessment simply on the volume of disclosed documents. The true cost of disclosure is not reflected solely in the volume disclosed, but also in the volume at the starting point and the methodology and workflow used to arrive at the disclosed set. • JURISDICTIONAL CONCERNS: Another enormous disclosure challenge arises from member states' differing implementation of the European Commission's Data Protection Directive. This challenge requires parties, regardless of their location or the governing law of any contract in dispute, to consider the location of data sources and the movement of data across jurisdictional borders. Many know of the issues and difficulties in moving data from the EU to the U.S., but issues can arise even when moving data between EU countries. Often parties address this by initially reviewing the data in-country and moving only those documents known to be relevant and not personal. MORE CHANGES TO COME E-disclosure in the EU clearly is not as straightforward as some think, and we do not see things getting any easier. Given the proliferation of social media and the increasingly blurred lines between personal and business affairs, more changes and challenges abound. Perhaps the next area of more immediate concern is the European Commission's latest project — its draft General Data Protection Regulation. We'll be waiting curiously as this regulation develops.