How E-Discovery Can Be a Gamechanger for Legal Processes in India
By Tim Rollins
This article, authored by Exterro Director of Product Management Sathishprabhu Jayabal, originally appeared on November 9, 2022, in the Times of India.
The legal system in India, unlike other sectors, has been slow in digitalising. The rate of penetration of legal tech in India is very low. With an incipient 10% penetration level, the size of the domestic LegalTech market is $380 million now. This spells growth with a huge potential but there are a few roadblocks.
Let’s look at existing realities: Most administrative processes used by legal professionals in India are ad-hoc and archaic as they rely on paper-based systems, leaving immense scope for inefficiency and delay. Often the process of discovery and legal review is fragmented. As a result, non-substantive administrative tasks like filing, case allocation scheduling and document management take up 45-55% of a legal professional’s time. Just the act of issuing summons, something that should be relatively straightforward in the age of technology, accounts for 1/4th of the life cycle of a civil suit or 273 days.
An estimated Rs. 80K crore of business was lost as a result of prolonged court cases and more than $20B in public infrastructure projects were stalled due to pending litigation. This is perhaps why 54-57% of Indian companies say they need automated processes, especially for the process of discovery — that is, the gathering, reviewing and analysis of data relevant to litigation. E-discovery technology is bound to improve the efficiency of legal processes, ensuring smooth operations and reduction of losses.
Solving problems with e-discovery technology
Automation: Current circumstances in India are indicative of lengthy legal processes, especially the gathering of data. India is currently generating upwards of 32,397 petabytes of data. With rapid digitalization, electronically stored information too has increased. This is bound to increase the time taken to gather data for litigation if it is done manually. For instance, an enterprise with over 1000 employees and operations across different regions will have data scattered across offices or devices of remote employees.
Similarly, an average enterprise in India, has to navigate a series of complex processes just to complete the process of discovery. Collecting data and investigating it is not an easy process. Say offices across the country and HQ in Delhi. If they want to investigate data located somewhere else, doing it manually creates bottlenecks. It takes days or weeks to put together the information in one single place. With automation this time scale reduces drastically. In an instance of litigation or internal investigation, they manually gather data from each of these regions. IT teams across these regions compile the data, transfer it to the cloud, load it back to the hard drive and send it to the legal team.
Perusing through each and every piece of information is a cumbersome and lengthy process. If the company adopted an automated e-discovery tool, legal teams can gather data even from remote endpoints within the click of a button and have data that is indexed, analysed and presented for review within a matter of hours. Besides, if the e-discovery software has production and presentation capabilities, it ensures all data is in one single same format, eliminating the need to operate multiple tools to access different data sets. In addition, data silos and the margin for error is also greatly reduced with e-discovery software. E-discovery software ensures accurate indexing of data. When presented in court, the indexed files present for easy review and perusal, reducing the burden of having to look through numerous sheets of paper.
Forensically sound process of discovery: The process of discovery for civil cases in India is defined by the Code of Civil Procedure. Indian civil litigants are required to file an application with the court to gain access to discovery documents. The law also allows the parties to a legal suit to give notice, at any time during the suit, for inspection of any document referenced in another party’s pleadings or affidavits. This requires forensically-sound data to be ready or it would lead to an inordinate number of delays. In addition, the process of discovery of electronic evidence is defined in the Information Technology Act. This intersection can make data gathering, compliance and review a lengthy process.
Additionally, establishing a chain of custody for each piece of evidence can make or break a case and the risk of inefficiencies persists if data is gathered manually. When there is a breach in the chain of custody, critical documents can be deemed inadmissible. E-discovery technology ensures that chain of custody is recorded whenever data is collected. For instance, if critical evidence pertaining to a case is recorded on a specific device of an employee located in a different state, the software records necessary information. This includes the date and time of collection, which device it was collected from or the source of collection and also generates a hash key for every file. The hash key establishes that the data is forensically sound.
The process of discovery is critical to businesses, especially when lawsuits that could lead to massive losses can hinge on smoking guns — like the contents of a few emails or text messages. Relying on manual collection, analysis and review of data may lead to unfavourable outcomes. E-discovery software will not only help businesses better manage their internal investigation and litigation matters but it can lead the way to an efficient legal process in the long run.