Discovery is an essential part of any judicial process. It involves identifying and collecting all potential sources of data and information relevant to a case. Digital and technological innovation has, however, made managing and upholding legal privilege in the discovery process exceedingly difficult.
“Legal privilege relates to communication between legal advisors and their clients during the course of obtaining or giving legal advice,” explains Danny Myburgh, MD of independent data processor LexTrado.
While in the past, these privileged conversations may have taken place face to face, behind a closed door; email, instant messaging and other digital communications now provide a written record that would have never existed before.
“When a cyber forensic investigation and digital discovery (E-Discovery) has to take place, privileged communications are often intermingled with, and not easily separated from, the other data that may be relevant to the judicial proceedings. This poses a major challenge for maintaining legal privilege,” says Myburgh, adding that even if legally privileged information is deleted off a computer it can be easily recovered using simple recovery software.
LexTrado’s E-Discovery platform has been specially developed to overcome these challenges while still ensuring all relevant electronic data is collected and processed. “Through state-of-the-art hardware and software, we are able to easily identify and locate all privileged information and exclude or redact anything that is confidential or privileged from the discovery process,” says Myburgh.
New information landscape
According to Myburgh, in a discovery project the potential sources of data can be vast – including backups at storage facilities, old computers and even broken hard drives. He adds, “The team tasked with conducting the discovery project has to ensure that their review of all the data is completely accurate and that nothing is overlooked or missed. Traditionally, this would be an extremely time consuming task – and in legal proceedings, time is money.”
Myburgh explains that the average person has about 2GBs of email and 10GBs of data, which translates to over 850 000 pages that would have to be reviewed in legal proceedings. “If each page takes 30 seconds of review to determine relevance, that would be over 7 000 hours of manual review work – and that’s just for one person’s data,” says Myburgh.
LexTrado’s E-Discovery platform digitises this process with advanced scanning and processing systems. “This doesn’t only remove room for human error, but it also reduces the time and costs involved in the review process by as much as 50%,” adds Myburgh.
He concludes, “Justice can only be served when all relevant information is appropriately gathered and presented. Therefore, in the current information landscape – where 90% of all data is produced digitally and only 30% of legally-relevant transactions make it onto paper – the way E-Discovery is handled in legal proceedings is of paramount importance.”
Beyond E-Discovery, LexTrado also offers secure and dedicated hosting, OCR scanning, escrow services, a digital case management system and consultancy services. For more information on LexTrado or to set up a free consultation, visit www.lextrado.com or call 012 664 0066.