However, Drew Lewis, eDiscovery Counsel at Recommind, believes firms are still unsure as how best to address these new rules and how they can make disclosure a more fluid process.

Keyword searches

The new rules aim to help better manage the costs of case management by requiring all parties involved to sit down at the first case management conference and agree the method and approach to disclosure, as well as estimate the budget for this. Case management will therefore become more important much earlier in the process as lawyers and the parties involved will have to discuss the methodology up front.
Practice Direction 31B states that technology should be used to ensure that document management activities can be undertaken efficiently and effectively, and that the use of proposed keyword searches and other types of automated search should be discussed with a view to reducing the burden and cost of disclosure. Under these new rules technology will become a ‘partner’ in the case process.

Limited control

Many businesses today are struggling to cope with their ever growing data reserves and have limited control over what information their organisation has and where it is stored. To address this challenge, law firms need to help their clients get much more savvy when it comes to data management and invest in ‘early data assessment’ – that is to establish which sources of electronically stored information (ESI) need to be included, where these sources are, and who knows about it.
Some law firms will find that they need to set up their files and data for storage in a more considered fashion to respond to the new requirements – and technology will prove invaluable in their efforts to do that. Technology can automate as much of the disclosure process as possible – from preservation and collection to early data and early case assessment, through to review and analysis. The stakes are simply too high to take a piecemeal approach. With a strategic approach to electronic disclosure, law firms can work with in-house legal departments and analyse key documents faster, allowing them to make fully educated decisions from the very outset of an event, resulting in lower, more predictable costs and better outcomes.

Technology tools

Mark Surguy, a partner at global law firm Eversheds, says: 'The costs of disclosure owe a great deal to the data explosion and the consequent need to manage electronically stored information by working closely from an early stage with technology partners such as Recommind.  This approach assists hugely in estimating the disclosure costs effectively.  There are lots of helpful technology tools for measuring data and review speed which make the budgeting process considerably more precise than has been the case in the past.'
Law firms and their clients should recognise the new rules as an opportunity to refine some existing practices, such as storage and retrieval of relevant items for disclosure. There are now intelligent technologies that leverage data from tools that drive keyword search to the next level and use machine learning to bring order, control and ease of management to what might otherwise have been an onerous and expensive process.
With a strategic approach to electronic disclosure, legal departments and their law firms can find and analyse key documents faster, allowing them to make fully educated decisions from the very outset of an event, resulting in lower, more predictable costs and better outcomes.