Email evidence jacks up litigation costs

Head-scratching all round

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Confusion over the handling of emails and other electronic documents for use as critical evidence in big litigation cases is costing the legal profession millions of pounds, a new survey has found.

Ambiguity in deciding what forms of electronic communication should be used in so-called "e-disclosure" cases has led to a hike in costs by more than £1m per case, according to more than a quarter (26 per cent) of senior UK litigators.

KPMG Forensic, which carried out the research, said nearly half of the 100 litigators it surveyed had little faith in judges' and masters' abilities to understand the new rules governing e-disclosure in the courts.

Despite the introduction of guidelines on e-disclosure, dubbed Civil Procedure Rules (CPR), in 2005, nearly half (43 per cent) of lawyers believe the rules had had a negative impact on big commercial litigation cases. Fifty-six per cent of lawyers felt the new rules had in fact jacked up costs.

Perhaps unsurprisingly, over two thirds reckoned an independent body of industry practitioners should be established to provide advice on training and dealing with the disclosure of electronic documents.

KPMG Forensic's technology head Paul Tombleson said the survey highlighted lawyers' concerns over e-disclosure rules which did not go far enough in keeping "pace with the the reality of the modern business world".

"E-disclosure can be immensely complex, costly, and challenging, and litigators have called for renewed energy in agreeing clearer case management guidelines. Many of them also clearly believe that some training for judges could be beneficial."

Meanwhile, the US legal system has also been battling with its own e-disclosure issues with judges considering overhauling how that evidence is handled in the courts.

The Wall Street Journal reports today on a number of high-profile litigation cases where electronic documents and emails have fallen through the net.

The legal team at chip maker Qualcomm had to issue an apology to Broadcom after thousands of emails that could have been used as evidence were uncovered following a patent trial between the two rivals earlier this year.

The WSJ also points to Morgan Stanley's failure to cough up email evidence in a number of cases that in one instance led to a jury slapping a $1.57bn bill on the consultancy firm.

Morgan Stanley later had that decision overturned, however, after it blamed its inability to produce email evidence on a genuine cock-up with its back-up tapes. ®

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