E-disclosure and Digital Investigations in 2014

2014 is seeing an expansion of electronic disclosure scope and at the same time a broader deployment of digital investigation technologies.

We will see fairly consistent and rigid enforcement of the new rules of proportionality and costs budgeting, with the courts continuing to exercise their case and costs management powers. Certain corporate clients will exert increasing influence over the way e-disclosure exercises are conducted, particularly in relation to the initial collection of documents.

Therefore the interplay between effective e-disclosure procedures and good information governance will be much more apparent as corporate clients of all sizes become increasingly cognisant about how they can best manage, preserve and, when necessary, collect and interrogate the ever-growing volumes of electronic data that they create.

The use of digital forensics in high-value matrimonial disputes will become more commonplace in 2014. Where there are suspicions that a spouse has taken steps to conceal or dissipate assets, and whether the digital forensics exercise is to try and assist with either tracing the actual assets or evidencing concealment, this is something that we saw more and more of last year and it is a trend that we expect to see throughout 2014.

Cases with a financial services element have dominated, ranging from mis-selling litigation to regulatory and enforcement type issues. The financial services sector is will continue as an area of focus, with everything from swaps to benchmark manipulation still swirling through the system. Voice processing and chat data will form a core part of e-disclosure exercises in most cases with a financial services flavour.

Apart from the influx of either financial services litigation or financial regulatory cases that we saw in 2013, one of the most common instructions throughout the year has been employee-related issues. These have ranged from restrictive covenant breaches and misfeasance claims against directors, to employee fraud and IP theft. However, one of the main reasons behind the rise in instructions from corporates has been the ever-increasing ways in which employees have either communicated, colluded or acted using electronic methods. When it comes to internal investigations and computer forensics, even some of the most self-sufficient corporates have found themselves needing to speak to someone, because the device is not the usual laptop or desktop but the latest smart phone or tablet.

Corporates have come to us because the information they seek is in the cloud or sent via the latest peer-to-peer messaging application. Or perhaps it is because the key method of communicating has not been email but Twitter or LinkedIn. This means that in 2014 we expect that in-house teams are increasingly likely to use outside specialist providers for the more esoteric devices or methods of communication, just as search and seizure orders are more likely to cover iPads as well as laptops.

For more information on electronic disclosure, digital forensics, or CCL’s other products and services, call us on 01789 261200, email edisclosure@cclgroupltd.com, visit www.cclgroupltd.com, or check out http://www.cclgroupltd.com/e-disclosure

Nathan is an e-disclosure specialist at Ccl Group, including: computer forensics, mobile phone forensics and digital investigation services.