You Say Tomato: American Tools with a European Application
If you are reading this, you are familiar with eDisclosure / eDiscovery to some degree (it would be surprising otherwise since you clicked to read this!). The purpose is to briefly unpack and explain why the robust disclosure regime seen in America drove technological advancements that are fit for purpose not only in large scale DoJ or SEC matters, but also benefit Eurocentric disputes that have varied requirements and considerations.
If you have had the distinct pleasure of responding to discovery orders in the context of an American-based dispute, you will undoubtedly recall the manifestly excessive requests for information and extraordinary deadlines. The European Commission (EC) or Competition Markets Authority (CMA) in the U.K. and similar authorities throughout Europe will impose similar timeframes on targets, but this is more of the exception than the rule. European driven investigations can have overlapping qualities with those born in America, however; litigation and data-driven legal triage is simply not as robust.
The jurisdiction of England and Wales has a disclosure regime and parties often litigate in its courts as an adversarial system. The unavoidable difference is that European corporates do not invest nor budget for legal disclosure in a comparable proportion to those in America. Those in America expect a certain volume of litigation and disclosure work and budget for defending said claims and the technology solutions that can streamline and marginalise its cost. These technological solutions are impressive in their speed and efficacy and can make millions of documents disappear from human review with a few mouse clicks. Some of these solutions are considered ‘best in breed’ and are appropriately priced as such.
If expensive gold standard tools are deployed on smaller European driven disputes with claim quantum’s far lower than their intended application, the ‘sledgehammer to hit a fly’ adage comes to mind. Luckily there are much-improved lower-cost tools available to solve some of these challenges, however; the gold standard tools still have a place and can be more cost-effective if leveraged more efficiently.
Three factors tend to drive the cost of these solutions that are handed down to clients:
- The cost of licencing the application and any of its IT infrastructure costs
- The volume of data ingested or loaded into the application
- The intervals at which data are loaded, or subsequently removed (if available or prudent).
Ingesting data en masse for many data subjects into a tool at a commoditised rate might be the clever or strategic thing to do depending on the situation, however; a measured or issues-based approach to identifying sources and data subjects (custodians) may alleviate sticker shock and up-front expenditures – most of which European companies have not budgeted in the first place.
Try being collaborative and consultative with your clients:
- What are the questions you are trying to answer?
- If you could find one or two documents or records in a case that would be a ‘win’ for you, what would they be?
The tools are only as good as those who drive them. Consider contacting a consultant prior to undertaking the next disclosure or data triage exercise.