Hong Kong Lawyer

MARCH 2018

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PRACTICE SKILLS 實 踐 技 能 LegalTech: eDiscovery Explained and Analytics Analysed By Sebastian Ko, Regional Director and Senior Legal Counsel Epiq Michael Yuen, Manager Epiq T he volume of electronically stored information ('ESI') kept by businesses and individuals is growing exponentially as storage costs plummet, while the types of ESI and velocities at which they are exchanged over networks increase prolifically (See eg Global Yellow Pages Limited v. Promedia Directories Pte Ltd and another suit [2013] SGHC 111, para 1). As Justice Lee of the High Court of Singapore opined, "[t]he sheer volume of electronic information, as well as the difficulty of accessing some types of electronic information, presents considerable practical challenges in the area of discovery in litigation." These developments have triggered great demand for sophisticated technologies and techniques to facilitate complex and large-scale document disclosures in litigation, arbitration, and internal and regulatory investigations ("eDiscovery") today. Litigants in Hong Kong, Singapore, and several other common law jurisdictions are subject to court rules concerning eDiscovery. For example, Practice Direction SL1.2 of the High Court of Hong Kong requires parties and their legal representatives in certain Commercial List and other actions to discuss eDiscovery before the first case management conference, including, where appropriate, "the tools and techniques (if any) which should be considered to reduce the burden and cost of discovery of Electronic Documents" and "the preservation of Electronic Documents". Compliance with these rules require parties to understand eDiscovery technologies and techniques, and to employ them in reasonable and proportional ways. In common law and civil law jurisdictions, parties increasingly employ eDiscovery to conduct complex, large-scale document disclosure projects. Again, the parties could only do so in cost-effective and forensically-sound manner, while managing legal and operational risks suitably, if they understand the pertinent issues of running eDiscovery projects. This article provides an overview of eDiscovery project considerations and current technologies and techniques. Planning for Review and Production A key objective of eDiscovery is to identify and produce non-privileged documents that are responsive to a subpoena, document disclosure request, or internal investigative needs, and to withhold documents that are non-responsive and/or are legally privileged. Case teams should take time to consider carefully the legal, operational, and technological requirements of document review and production. Relevant questions include: Is the production of native files required? Must image files containing text be rendered searchable, and is this even feasible? Is the preservation of metadata required? ESI collected in breach of forensic principles or improperly processed and analysed could waste substantial costs and time, especially when the problems are discovered much later (resulting in the need to repeat eDiscovery procedures). In a worse-case scenario, the case team could miss production deadlines, inadvertently produce privileged documents, or withhold relevant documents that should have been disclosed. Traditional Techniques and Tools When the project commences, ESI must be collected, processed, and hosted in a well-organised database. Hardcopies should be converted 74 www.hk-lawyer.org • March 2018

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