A new survey by Epiq Systems throws light on the recurring (and generally unanswerable) question as to the amount of eDiscovery work in the UK and Europe. One cannot assess the actual volumes, but it is helpful to know what large corporations and their lawyers are anticipating.
I get calls occasionally from (mainly US) providers of eDiscovery / eDisclosure software and services who want to know how big the European eDiscovery market is. My usual answer (after making sure that the caller appreciates that the UK and mainland Europe have entirely different systems of law) is that anyone who purports to answer this question is kidding themselves.
Whilst it is possible to identify UK civil litigation trends from figures published annually by the Ministry of Justice, this tells us nothing about the scale of the eDisclosure required – we do not know how many cases reached the formal disclosure stage, how much disclosure was undertaken independently of court timelines, or how big the exercises were. There are no statistics for investigations, whether internal or for regulatory purposes, nor for arbitrations and other forms of dispute resolution. What do we mean by “the European eDiscovery market” anyway, when much of the work is US-led, performed in Europe in order to comply with EU data protection and privacy requirements?
It is helpful, therefore, that Epiq Systems has commissioned a survey of law firms and larger corporates to find out what they are experiencing and (even more usefully) what they anticipate in the foreseeable future.The survey, which you can find here and which is summarised in this press release, points to a significant increase in all the components which comprise an eDisclosure problem – increases in data volumes, more major litigation and regulatory activity and increased difficulties in finding the required data, not least because of the ever-wider range of devices and repositories in which it sits.
Other factors will influence change over the next two years. Forthcoming changes to the UK Civil Procedure Rules will require parties to understand their sources of electronic information, to discuss them with opponents and to give the court accurate information, including anticipated budgets, to enable proportionate decisions to be made about the scope and method of eDisclosure. At the same time, clients face the “more for less challenge” (as Richard Susskind puts it) reflecting reduced headcounts and budgets even as activity increases. Lawyers, both in-house and external, must find new and better ways of working, and it takes no great skills of prophecy to see that modern technology (and in particular the various forms of technology assisted review) and outsourced managed review will, in practice, be the primary means of both containing and predicting costs.
Prophecy needs facts, and the survey report brings us the clearest picture which we have of future trends, adding horses’ mouth authority to the anecdotal assumption that corporations and law firms both anticipate an increasing need to search electronic sources and are informed about the options which are available to tackle them. Both corporations and law firms foresee an increase in the use of technology assisted review; volume increases and device proliferation are seen as key challenges by most; it has become clear to the majority of both corporate and law firms that this is a problem which is best tackled by engaging external expertise.
If the first step towards solving a problem is knowing that you have got one, then this survey points in the right direction. This is a competitive market, with providers offering both technology and managed review, for routine cases and for those with complications such as data protection and language issues. This matches the obligation owed to both courts and clients to present a range of priced options. The next challenge is to persuade smaller companies and their lawyers that eDisclosure is not itself an option, but the only practical and proportionate way to meet the challenges described in the survey.