eLitigation – a Growing Industry in the Legal Profession
In an increasingly evolving world, firms are expected to keep up with technological advances in order to survive. The legal industry has seen a momentum in technology-driven processes (as seen in the rise of Blockchain technology) and it is expected that this momentum will not slow down anytime soon.
The technological shift has not only affected law firms and legal practitioners, but the justice system has also recognised this and has implemented it in their own systems. The Federal Court began implementing these changes when it introduced the electronic court file (“ECF”) across its judicial work nationwide from July 2014. The Court has also welcomed the use of technology in legal proceedings, which includes eTrials, eCourtrooms, electronic lodgement of documents and electronic discovery (“eDiscovery”).
So, what exactly is eDiscovery? As the name suggests, it fuses the crucial role of discovery in litigation with the aid of technological software. To simplify, it is the process of discovery – collecting, identifying, reviewing and producing documents – but done electronically. Not only does eDiscovery offer commercial benefits such as cutting back time and costs in forgoing hardcopies, but it also accommodates to the changing nature of evidence itself. For instance, the Court now accepts electronically stored information (“ESI”) which includes, but is not limited to, emails, audio and video files, social media, instant messaging and websites.
The value of ESI in litigation has also led to a sharp increase in the volume of documents to be reviewed, due to the ease of communication and transfer of data through electronic means. Accordingly, modern legal firms are starting to recognise the value of eDiscovery as an integral part of the litigation process and are quickly responding to this shift. Top-tier firms such as Herbert Smith Freehills continue to expand its in-house eDiscovery teams through an entire division of the firm called Alternative Legal Services (“ALT”), which provides eDiscovery services to existing clients while expanding their client base all over the world, as eDiscovery services are well sought after in litigious jurisdictions such as the United States.
In fact, Relativity (previously known as kCura), one of the leading eDiscovery softwares available in the market, is a product initially developed for U.S. litigators but is now being used by law firms all over the world. Stuart Hall, kCura’s Asia-Pacific account manager, expects to see the growth of eDiscovery in the Asia-Pacific region, including Australia, over the next several years. As Hall notes, although Australia’s court system is less adversarial than the U.S. and eDiscovery sanctions by courts are quite rare, data growth is evidently a worldwide phenomenon – a consequence of the Information Age.
With the increasing use of ESI in litigation, eDiscovery has well and truly penetrated the Australian legal market as the need for a more cost-effective and efficient document review has increased amongst law firms. Whether this is implemented in-house, such as Herbert Smith Freehills’ ALT, or provided by external litigation support services such as elaw and Delium, law firms are increasingly turning to the aid of eDiscovery in order to effectively manage their litigation processes.
The growth of eDiscovery is synonymous with the increasing technological advances in the legal industry. As firms continue to reform and adapt in response, it can be reasonably expected that the role of eDiscovery as a profession will only continue to grow and expand in the foreseeable future.
This article was written by Febe Magno, an article contributor of Brietley London. Febe has graduated with a Bachelor of Laws/International Studies from Macquarie University and will be admitted as a lawyer in May 2019. Febe has experience working in eLitigation and has also worked in areas of family law and as an assistant to a QC in chambers.