Electronic Evidence: A new era in Swedish Arbitration?

11 November 2014 by James Farnell

Recently, on 16 October, I had the pleasure of being invited to YAS’ (Young Arbitrators Sweden) Arbitration day in Stockholm. The event gathered many of Sweden’s top young legal practitioners in the arbitration field. It was therefore with great interest that we were invited not only to speak about some of the advantages electronic evidence tools are bringing to practitioners in arbitration, but also to listen to some frank exchanges between lawyers as to the benefit of electronic evidence services, and what the future holds.

Swedish legal practitioners are on the cusp of a major change in the way firms approach their clients’ cases and manage their clients’ data. Only a year ago, many of the firms I was speaking to would acknowledge in conversation that they would sometimes have no choice but to turn to electronic evidence technology to manage particularly document heavy cases. However, this was not the norm, and particularly in the area of arbitration - a traditional approach to managing and reviewing documents (i.e. reviewing paper files) was preferred.

But times are changing… as the discussion at the recent YAS event demonstrated:

We sat down to listen to a panel composed of Mannheimer Swartling’s Kristoffer Lof, Hannes Snellman’s Caroline Snellman, and MAQS’s Pontus Erwerlof, with proceedings moderated by Sara Ribbeklint (MAQS).

Despite Sweden’s legal system, in which Kristoffer emphasised that the needs for disclosure or ‘discovery’ to use the American term are close to non-existent (when compared to the US or UK jurisdictions), the volumes of client data regularly presented to law firms for their cases is increasing constantly. Each of the panel had made use of electronic evidence tools for larger cases, although the degree to which they thought that these should be used as a matter of principle on a wider variety of cases varied.

One view expressed was that electronic evidence tools would only be used by a firm if the case required it, however, others expressed the view that there may be a case for using electronic evidence tools more systematically in order to increase the efficiency of the review work required for arbitration and litigation. In particular, one of the panel members mentioned that at a start of a case their team is often ‘flooded’ with documents sent from their client which often necessitated a tool to facilitate sorting and searching for key documents quickly and efficiently – so that an overview of the documentation in the case can be rapidly gained.

A trend that the panel agreed on is that they would be more likely to see requests for production of documents phrased in keyword search terms in the future.

Ultimately, one panellist was not persuaded that arbitrators are operating in a ‘new era’ in terms of using technology, and that fundamentally lawyers would not need to dramatically change the way they approach evidence in a case.   Another agreed to a certain extent, but did think that the work to gather evidence is what is issue here – and that given the increasing volumes of digital data – a more efficient way of working involving technology was needed to adapt to this.

Whilst the discussion in Stockholm did not provide a conclusive answer to the question of whether we are in a ‘new era’ of using legal technology in practice, Swedish arbitrators clearly already have their eye on the future. The degree to which firms are taking steps to prepare themselves for the inevitable flow of data that is coming their way is not consistent. Some firms have acquired much higher levels of knowledge of electronic evidence tools and techniques than others. Time will tell which of the top Swedish firms have taken the right approach.