ESI Discovery

Organisations are finding that the amount of Electronic Stored Information (ESI) is increasing at a dramatic rate. To compound the situation, litigation is on the increase across EMEA. Companies have to comply with FOI requests and Human Resources may need specific information about an employee both of which can be incredibly time consuming to discover.

The next issue is if an organisation becomes involved in some form of litigation. With such large volumes of data, law firms are confirming that organisations are settling commercial cases before they reach court. Without having visibility of the crucial data the out of court settlement may be more in the favour of the opposition.

If an organisation was able to reduce the irrelevant content before passing to the external legal counsel, then the Law Firm would have a smaller volume of relevant items to perform the discovery against rather than a large volume of irrelevant content. The consequence of this would be a better discovery review as lawyers would prefer to be practising their legal prowess rather than the technical task of trawling through and filtering out irrelevant content.

The importance of efficient discovery of ESI data

Hiding behind a process stating that it will take too long or cost too much to retrieve the information is no longer a defence as has been shown with the Earles vs Barclays case. The court ruled in favour of Barclays, but due to their inefficient e-disclosure process and the time consuming / expensive process, the court deducted a huge proportion of the awarded sum as a penalty of their inefficiency.

In 2013 the Civil Procedure Rule 31.5 (CPR 31.5) came into force. Within this rule is the process that a report must be produced two weeks prior to the first case conference. Within this report there needs to be detail for the location of items to be disclosed and the cost estimate to retrieve it. Any document that has been disclosed at this point cannot be used in defence later in proceedings.