Excavation, Evolution and EMEA Ediscovery: Spotlight on the U.K. and Germany

What do dinosaurs and data have in common? While it may seem like a strange comparison, excavating a fossilized Tyrannosaurus Rex may not be all that different from finding the most relevant information in terabytes of data.

Just as paleontologists have adopted modern technology to locate and date fossils (or create terrifying hybrid dinosaurs such as those in the summer blockbuster Jurassic World), international ediscovery is experiencing its own technology revolution, with firms and companies adopting new techniques and technology to maximize accuracy and efficiency.

Through two recent surveys focusing on EMEA ediscovery, an in-house market study on ediscovery in Germany and a collaborative survey of 101 general counsel and in-house lawyers in the UK with Legal Week Intelligence, Kroll Ontrack unearthed just how firms and companies are handling ediscovery, litigation and regulatory data demands across the pond. Below you will find a summary of these reports, to tide you over until you get time to read both documents in their entirety.

International Ediscovery: Intriguing Themes

• Regulations, Conflicting Roles, and Costs – UK survey respondents identified an increasingly regulated environment, straddling the need to be legal advisers and commercial advisers and controlling costs as the most pressing challenges facing legal departments today.

• Internal and Local Tendencies – Two-thirds of the companies surveyed in the UK say they use their own technology and software solutions, although not many have sophisticated ediscovery solutions at their disposal. While companies in Germany generally outsource data processing to external providers, they prefer to use experts with roots in Germany.

• Differences in Implementation – While nearly 60% of the German companies surveyed recognized the necessary nature of ediscovery, only 20% have response plans for ediscovery projects. In the UK, ediscovery has been around for more than 10 years in litigation and 53% of the surveyed companies are also now embracing sophisticated technology proactively to review their ESI for compliance and potential legal risks, although a third stated that they do not use technology for this process.

Ediscovery in the EU: Dramatic Differences

• Predictive Coding – While the use of predictive coding has been warmly received in the US for quite some time, EU courts have not had occasion to sanction its usage. However, the Republic of Ireland High Court approved the use of machine learning technology in a case in March – the first time a court in the British Isles has done so. The ruling addresses major concerns regarding predictive coding and seeks to sway the skeptics.

• No Formal Rules – In contrast to the formal discovery rules in the US and the UK, Germany has no formal legal requirement for ediscovery in civil litigation. That said, ediscovery technologies are nevertheless consistently being used in litigation which indicates just how useful using ediscovery technology can be in case building. With over half of the companies having experienced an ediscovery incident in the past year and a third predicting they will face an ediscovery incident in the next 12 months, being ready for ediscovery is becoming even more important.

• Differing Demands – Internal investigations, regulatory investigations and litigation arising outside of Germany are the major drivers of ediscovery services in Germany whereas domestic litigation followed by internal investigations and international litigation dominate ediscovery projects in the UK.

What Lies Ahead for EMEA Ediscovery?

• Specialization – Given the growth of ediscovery practices and professionals in the US, experts expect a similar trend to take hold in the UK, Germany and the rest of EMEA, with ediscovery becoming a legal specialism in its own right.

• Education –While individuals in Germany are highly aware of the relevance of ediscovery in legal proceedings, there is still a need for greater education regarding the ins and outs of ediscovery. In the UK, there is scope for corporate counsel to learn more about ediscovery, given their dependence on law firms to guide them. The cost benefits of unbundling legal services and relying on experts for ediscovery is becoming very apparent especially in relation to document review.