Is E-discovery a foreign concept in Continental Europe?

On Tuesday we had the last in our European series of Kroll Ontrack webinar discussions about electronic evidence. Unlike the UK and the US, where there is a strict legal obligation for parties to disclose (often a vast quantity) of relevant documentation to other parties, such procedures in Continental Europe are very limited. This of course begged the question our panel were discussing which was: “E-discovery – is it a foreign concept in Continental Europe?”. By raising this question we were keen to find out how European lawyers think about this topic and whether e-discovery tools still have a practical purpose, or are they simply redundant outside of Common law systems?

In case you missed the webinar, you can listen to a recording of it below:

[youtube http://www.youtube.com/watch?v=-O3wuN7xQHA?rel=0&w=420&h=315]

By the reaction of our participants, but also our listeners, this topic is obviously one which generated much interest and animated discussion.  Whilst no firm conclusions about the future of e-discovery technology in Europe will be drawn at this stage – some very useful insights were to be had:

Claire Bernier (Altana Law, partner – Paris) gave us some interesting examples of use of e-discovery technology for two of her cases in France, Santiago Gómez Sancha  (Director of Information Services, Uría Menéndez, Madrid) outlined both the efficiencies but also the challenges lawyers face when dealing with e-discovery technology, and Tina Shah (Electronic Evidence Consultant, Kroll Ontrack -London) outlined how technology is currently being used for cases in Europe as well as  the challenges providers face in the future.

I will not attempt to summarize the whole discussion here, but some of the general themes and salient points are set out below:

-          The main area in which e-discovery technology comes into play in Continental Europe is in terms of regulatory compliance and assessing the legal exposure of companies to regulators.  Our speakers have seen examples of both (i) preventative action: where a company decided to conduct an internal investigations for suspected wrongdoing prior to a ‘dawn raid’, and (ii) reactive: once a business had been the subject of a ‘dawn raid’ by a regulatory authority.

-          There were, however, other types of cases in which e-discovery technology could deliver results: Claire mentioned a case in which a client had to set out to prove to a Court that they had no knowledge of a particular state of affairs – which involved a detailed search for specific documents through very large volumes of data.  Tina also gave an example of how an employer had wanted to investigate the suspected fraudulent activity of an employee prior to taking action.  In both cases e-discovery tools and strategic technical advice were needed to reach these results.

-          There appears to be a market in Europe for, as Claire described it “gadget-size” e-discovery tools which can be used for pre-litigation matters as the most efficient way to obtain evidence.  Not only do e-discovery tools reduce the costs of litigation but, according to Claire, even in some cases could earn the company money by helping to improve commercial performance.

-          Santiago set out the challenge that whilst providers were in his experience technically superior to law firms and would conduct the work in the most efficient manner, law firms still find it hard to justify these additional costs to their clients.  Using e-disclosure technology was however simply the most efficient route and that ‘cheaper’ Do-It-Yourself options are not a viable solution.  It was only by using the correct tools that efficiency and results could be achieved.

-          Ultimately, according to Tina, e-discovery (a fundamentally American concept) may have been misunderstood in Europe in the sense that it should not only stand for the ‘one size fits all’ processes involved in large-scale US litigation.  Rather, in Europe, providers should give in each case a bespoke solution for the results lawyers are attempting to achieve.  Whether a firm is looking to assess the evidence before bringing forward a litigation case, or searching for a key piece of evidence within a very large volume of documents to back up their matter or investigation  – these tools are still those of e-discovery, although admittedly for a more specific / bespoke use.

Perhaps the term ‘e-discovery’ should be abandoned altogether for Europe, its application being so different from the US / UK use of the term?  As Santiago said himself there is still more education that needs to be done for clients to properly understand the benefits of using electronic evidence tools in Europe.