14 December 2011

Kroll Ontrack identifies 2011 as a turning point for legal technology

LONDON, Dec. 14,  2011 - Kroll Ontrack, a leading provider of legal, information management, and data recovery products and services, has identified those legal technology themes that it believes have made the most impact in 2011.

The introduction of the Bribery Act and the increased usage of social networking and personal mobile devices at work have made it essential for legal teams to consider newer sources of evidence and use technology for compliance checking purposes and to build and defend cases.

“This year has been a turning point for technology and law,” said Martin Carey, managing director, legal technologies at Kroll. “We have seen a confluence of factors driving the uptake of technology in the legal sector. These include: ongoing economic weakness leading to cost-cutting; the rapid explosion of electronic devices and modes of communication  (smart phones, tablets and social networking) making it harder than ever to stay on top of a company’s data and regulatory requirements; and the growing acceptance of the role of technology in legal practice by the judiciary.”

1. Bribery Act

The Bribery Act came into force on 1 July 2011, and has been described by some as the most draconian anti-corruption legislation in the world. Munir Yakub Patel, a magistrate’s court clerk, is the first person to be charged under the Bribery Act after admitting he kept details of a traffic summons off a court database in return for £500.  The Act targets not only the bribery of officials, but also creates a new corporate offence for companies that fail to prevent bribery by employees. A full statutory defence is available if companies can show they had “adequate procedures” in place to prevent bribery, and businesses have been urged by enforcement authorities such as the Serious Fraud Office to put their house in order. The SFO is expected to launch a series of cases to show it means business. 

Proactive companies are reviewing e-mails and other electronically stored information as part of their internal audit process to uncover potential wrongdoing such as corrupt practices. Technology has become central to the process of checking the information stored on company systems and other devices like laptops, smartphones and iPads.

2. The Rise of Social Networking

The power of social networking was all too apparent in the riots, which swept across the U.K. this summer.  Rioters using Blackberry handsets were able to rapidly mobilise and coordinate acts of vandalism, theft and violence using Facebook, Twitter and BlackBerry Messenger.  A number of those charged with inciting disorder have already been imprisoned and the courts have relied upon social networking evidence. 

Social networking is not, however, only for teenagers with smartphones. Businesses are also turning to services such as these to communicate, market their products and strengthen their relationships with consumers. They are also using tailor-made networks for companies such as Chatter on Salesforce.com to communicate and collaborate. Predictions are that by 2014, many businesses will be relying more on social networking than e-mail¹.

Evidence gathers where people interact and spend time, so it is not surprising to see postings on Facebook, LinkedIn and other social media featuring in criminal proceedings and civil law suits.  When it comes to using this evidence, challenges do arise in relation to accessibility, admissibility and privacy. Lawyers really need to keep pace with these technologies plus evolving evidentiary and ethical standards as legal practice moves ever further into the electronic world.  Ahead of litigation, companies need to do more to address the risks flowing from this new stream of information in social networking policies.

3. The Mobile Revolution

The spread of mobile gadgets like BlackBerrys, iPhones and tablets in the work place is a real trend to watch out for as we enter the post-PC era. For example, Gartner claims that at least 50% of enterprise email users will rely on a browser, tablet or mobile client, instead of a desktop, by 2016, due mainly to the increasing comfort of using a mobile device and a browser for enterprise applications.

Companies are divided between giving their employees the green light to use smart new personal technologies at work or banning them for security and productivity reasons. Some companies are tapping into this personal-computing revolution and the business efficiency and agility likely to flow from an influx of new consumer technologies into their businesses. Those that do need to update their policies and security mechanisms to reflect their new risk profiles.

Mobile devices are becoming important sources of evidence in litigation as more and more data is dispersed to devices and the cloud.  Lawyers are increasingly turning to technical experts to help map the data landscape and select those sources most likely to contain relevant evidence and extract it cost-effectively.

4. Practice Direction 31B

Practice direction, 31B on the disclosure of electronic documents in civil litigation came into effect in England and Wales in October 2010 and was still being widely discussed in 2011. The new Practice Direction aims to encourage and assist litigating parties to reach agreement on the disclosure of electronic documents by exchanging information at an early stage.  The use of technology and techniques to reduce the scope and burden of e-disclosure is also strongly encouraged.

An Electronic Documents Questionnaire was provided as a means of exchanging information in a structured way. In 2011, the Questionnaire has been used voluntarily in certain cases and parties have also been ordered by the Court to use it.  In the year since its introduction, the Questionnaire has been positively received and seems to be working well. Whilst use of the Questionnaire is not compulsory and not yet widespread, it is anticipated that it will be adopted and its exchange will become a standard feature of litigation as lawyers begin to see the value in using it.

5. Intelligent Review Technologies

The human review of documents in litigation is expensive and various new intelligent review technologies have emerged and been used in 2011 to reduce costs. Some of these learn from human reviewers and help focus lawyers on the priority documents first; others analyse the decisions made as lawyers classify documents and suggest categories for documents not yet read. And, some intelligent review technologies do both. The potential these new technologies have to keep litigation costs in check has been recognised by lawyers and judges alike.  Lawyers need to work out how to build these technologies into their work practices and keep an eye on best practices that are beginning to emerge on how to use them in a way that will withstand scrutiny by opponents and the courts.

“These developments have fundamentally impacted legal practice and we expect their effects to continue to be felt throughout 2012,” said Carey. “Key legal technology developments next year will include the increased use of Intelligent Review Technologies, such as prioritisation technology and predictive coding which reduce the burden of document review. We can also expect to see more attention paid to technology that supports preservation efforts and compliance with privacy laws. 1 October 2012 is the target date for the implementation of various costs reforms suggested by Lord Justice Jackson, including the introduction of a new formal “costs management process”. Lawyers will need to focus more on budgeting for litigation costs early on in the process and invest in software and training to support costs management.”

About Kroll Ontrack Inc.

Kroll Ontrack provides technology-driven services and software to help legal, corporate and government entities as well as consumers manage, recover, search, analyse, produce and present data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, data destruction, paper and electronic discovery, document review, computer forensics, secure information services, ESI and jury consulting, and trial presentation services. Kroll Ontrack is the technology services division of Kroll Inc., the global risk consulting company. Kroll is a subsidiary of Altegrity, an industry-leading provider of information solutions.

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¹Gartner Says Social-Networking Services to Replace E-Mail as the Primary Vehicle for Interpersonal Communications for 20 Percent of Business Users by 2014