The Pros And Cons Of Preliminary Discovery Technology

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1 CYBER SECURITY MALAYSIA AWARDS, CONFERENCE & EXHIBITION (CSM-ACE) 2010 October 25 29, 2010 Kuala Lumpur Convention Centre E-Discovery

2 PRELIMINARY DISCOVERY OF ELECTRONIC DOCUMENTS In matters involving information technology disputes or copying of electronically stored materials, preliminary discovery of electronic documents can play an important role in collecting evidence and identifying potential defendants and causes of action. It is important though to: know what the client wants What they want to spend What do they want as far as output (Report, affidavit etc) If they don t get it they may not pay the bill Need to communicate constantly 2

3 THE RELATIONSHIP BETWEEN ANTON PILLER ORDERS AND DISCOVERY In disputes involving large amounts of information available only in electronic form, it is easy for that information to be destroyed either deliberately by the parties involved once they have knowledge of the pending proceedings or through routine overwriting of data as part of normal operations. The role of Anton Piller orders is to preserve evidence and the scope of material that may be seized needs to be very carefully defined. Where data is obtained that falls outside the scope of the Anton Piller orders, the access to this material is governed by the rules of discovery. Like a civil warrant Course Overview 3

4 POST ISSUE DISCOVERY Discovery was first introduced in nineteenth century English equity procedures and aims to provide the parties with access to all of the relevant documentary evidence in each party s possession so as to prevent ambush at trial and to ensure that litigation is decided on its merits. However, discovery is not directed towards assisting a party on a fishing expedition. Only documents, which relate to the matter in issue, are discoverable, with it being sufficient justification that the document would, or would lead to a train of inquiry which would, either advance one party s case or damage that of his adversary Course Overview 4

5 DOCUMENT DESCRIPTION Federal Court O 15 r6(3) provides that A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified. Significant and unnecessary costs can be incurred by laboriously producing lists of all electronic and paper documents (not just privileged or confidential documents) which ultimately does little to resolve the issues between the parties and or assist in the preparation for trial. Course Overview 5

6 CRITICISMS OF DISCOVERY Common criticisms of discovery include: Objectives of discovery are not achieved due to discovery being used as a delaying tactic, a fishing expedition or as a process to add to the other side s litigation costs; and When useful, discovery is at too great a cost. If the costs of complying with orders for discovery are excessive they should be brought to the attention of the Court. In cases involving vast quantities of electronic data, accurate estimates of the cost of providing information in a useable form should be determined and where appropriate used to limit the required scope of investigation. 6

7 Controlling Discovery Keeping the level of discovery proportionate to the type of case; Encouraging parties to confer and concur on the scope of discovery; and Greater use of informal discovery involving the exchange of relevant documents without the need for verification. 7

8 Forensics in Disocvery It is important for the Courts to bear in mind that while computer forensics makes a wider range of data recovery and analysis technically possible, the associated costs need to be limited to a scale in keeping with the issues and quantum in dispute. Issues of privilege and privacy may also arise if computer forensics experts require a copy of all the data on a computer rather than individual files. 8

9 Practice Notes Also see Practice Notes 9

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