Overcoming the virtual paper mountain

Managing electronic documents is one of the biggest challenges facing litigation lawyers. The careless abandon with which electronic documents can be produced and distributed has a huge impact on the volume of documents that lawyers might have to review.

Research suggests that as much as 90% of documents are created electronically with up to 70% never being converted into a hard copy. Surprisingly, electronic data was not, until recently, referred to in the Rules on Disclosure in the Civil Procedure Rules - hardly surprising since the CPR started in the late 1990s and came into effect in 1999 when electronic documents were nowhere near as prevalent as they are today.

The CPR has now been updated to deal with e-disclosure. In recognition of the widely held view that the CPR had not kept pace with technology, the Commercial Court Users' Committee published a report called Electronic Disclosure in October 2004 which identified several factors which justified the different treatment of electronic documents from paper documents:

Critical mass

Computers can capture copies and drafts of the same document, attach documents and create large databases. Emerging technology is also contributing to the mass of documents held electronically, such as MSN Messenger, multimedia files, BlackBerries and other PDAs/mobiles. Electronic documents are more easily duplicated than paper documents; e-mail users frequently send the same e-mail to a number of recipients who then reply, copying in other recipients or forward the message on to others. This adds to the complexity of disclosure.

As much as 90% of documents are created electronically with up to 70% never being converted into a hard copy

Undeletable

Deleting an email or electronic file often does not erase the data from the computer storage system, so the number of electronic documents that are capable of review is likely to be greater than the number of paper documents.

The haystack

Electronic documents are generally held amongst the mass of other irrelevant and possibly privileged emails/files that are generated daily. Many archive systems also store data on magnetic tapes that contain documents from different sources. This means that any search for disclosure can involve trawling through thousands of irrelevant documents in order to comply with the parties' disclosure obligations.

The virtual company is born of a radical rethink of the project team

Is there a better way?

The topics covered in this series dovetail neatly with the future possibilities for the ‘virtual company'.

The virtual company is born of a radical rethink of the project team and the construction process along the same lines as the concept of partnering. The corner stone of a virtual company is the assumption that organisations want "to trust" and "be trusted" and that there should be a correlation between customer satisfaction and the rewards of the virtual company members.

Each member of the project team is a partner in the virtual company. There is no blame or redress between the partners in the virtual company (except in cases of bad faith). The partners will take as financial reward a fixed predetermined share of the profit of the virtual company. As a result, each partner's financial reward is measured by the success of the entire enterprise and relies on the other partners' performance.

Those partners with a higher predetermined share of the profit must also take on board a higher predetermined share of any losses and because the virtual company is intended to be a ‘no blame' culture, the all important matter is to identify the loss; not find a culprit. All this gives considerable comfort to the customer. The customer pays for the cost of the team, the cost of the construction operation and the partners' reward if earned.