Litigation and eDiscovery - a year in review and trends to look out for in 2024

This article was first published in International Investment on 4 December 2023. 

2023 in review

Were there any specific trends in alternative dispute resolution (ADR) methods, such as mediation and arbitration, in 2023?

The move towards compulsory mediation for certain types of claims in England and Wales was not followed in Guernsey. Nonetheless, voluntary ADR played a vital role in resolving litigation economically and was a continued feature of offshore dispute resolution in 2023. High inflation and struggling economies worldwide likely impacted litigation budgets and made it more attractive to resolve some disputes without incurring the costs of proceeding to trial.

In the world of eDiscovery and digital forensics, ADR processes increasingly leverage advanced technologies. Integration of digital evidence, predictive analytics, and artificial intelligence could play a pivotal role in streamlining ADR proceedings, ensuring efficient resolution of disputes with a focus on electronically stored information.

With the ever-growing expansion of data along with the increasing types of data variety types, we see an ever-increasing push to cloud-based solutions, advanced technologies such as AI being introduced as well as collaboration with between various platforms and new apps and software being introduced in the market.

Were there any notable trends in litigation, including changes in court procedures, case management, and eDiscovery, in 2023?

The legal scene underwent significant transformations marked by discernible patterns in litigation. Notable shifts included a heightened integration of technology within courtrooms, an increased focus on data security in eDiscovery procedures, and the widespread adoption of virtual proceedings and litigation due to the impact of the COVID-19 pandemic.

Guernsey made progress with a programme of reform to its Court processes which it is hoped will enable all stages of litigation, from the filing of papers to the conduct of the trial, to take place electronically with limited reliance on paper.

Predictive analytics and Technology-Assisted Review (TAR) played a pivotal role in streamlining eDiscovery processes. The legal community witnessed a continued uptake of legal tech solutions to enhance operational efficiency.

A UK Supreme Court decision rendered unenforceable certain litigation funding agreements. This decision had limited relevance to other jurisdictions, given that it concerned legislation applicable only in England and Wales, but its impact on the litigation funding industry as a whole may be felt offshore.

Amendments to sanctions regimes in light of developments internationally impacted litigation and other changes in regulations, particularly in the realm of data privacy, influenced strategies in litigation.

Collaboration between legal and IT departments deepened, recognising the critical role of electronic evidence in contemporary legal proceedings.

As these trends shaped the landscape, legal practitioners adapted to the evolving challenges and opportunities presented.

2024 trends

How has the rise of digital assets, such as cryptocurrencies, affected the legal landscape in terms of regulations and compliance?

The rise of digital assets, particularly cryptocurrencies, has significantly reshaped the legal landscape, leading to the implementation of new regulations and compliance measures.

For example, in July 2023 Guernsey introduced legislation to regulate and license persons providing a range of services including those related to virtual assets and cryptocurrencies (known as Virtual Asset Service Providers).

As part of its commitment to tax transparency measures that seek to tackle tax avoidance and tax evasion, in November 2023 Guernsey announced its intention, in co-operation with the international community, to adopt the Crypto-Asset Reporting Framework developed by the OECD.

The increasing popularity of cryptocurrencies has drawn considerable attention from regulators due to concerns about potential illicit activities like fraud and money laundering.

The legal response aims to strike a balance between fostering innovation and addressing potential risks while ensuring the stability of financial systems.

How are intellectual property disputes resolved through litigation, arbitration, or alternative dispute resolution methods, and what are the pros and cons of each approach?

Intellectual property (IP) disputes can be resolved through various legal avenues, each with its own set of advantages and disadvantages.

In litigation, parties bring their cases to court, presenting evidence and arguments before a judge or jury. Litigation offers a formal process with clear rules, but it can be time-consuming and costly. In eDiscovery, we play a crucial role in managing the digital evidence, ensuring its admissibility, and facilitating a smooth process.

Arbitration involves a neutral third party who reviews the evidence and makes a binding decision. While typically faster and more private than litigation, arbitration may lack the transparency of court proceedings. In eDiscovery for arbitration, we focus on efficiently handling electronic evidence to support the arbitration process.

In our role, we prioritise adapting eDiscovery processes to the specific demands of each resolution method. We ensure the efficient collection, processing, and presentation of digital evidence, navigating the legal nuances to support the chosen dispute resolution approach.

The key is understanding the unique requirements of each method and leveraging technology to facilitate a seamless and defensible eDiscovery process tailored to the intricacies of intellectual property disputes.

What legal protections exist for inventors, artists, and creators regarding their moral rights and the attribution of their work?

Moral rights are protected by several provisions in the Guernsey suite of IP legislations. Provided they have been appropriately asserted, moral rights can be relied upon by the author or creator of a work to preserve the link between them and their work, such as their right to be identified as the author or right holder whenever their work is made available to the public and the right to object to derogative treatment of their work.  

In the realm of eDiscovery, protecting the moral rights and attribution of inventors, artists, and creators involves a keen focus on the electronic evidence associated with their works. Our role encompasses ensuring the proper identification and preservation of digital assets, including metadata that can be crucial for establishing authorship and maintaining the integrity of the content.

As part of the eDiscovery process, we collaborate with legal teams to navigate the complexities of copyright laws, ensuring that the relevant protections, such as the right of attribution and integrity, are upheld.

The efficient management of electronic evidence and chain of custody are fundamental to supporting creators in intellectual property disputes and safeguarding their moral rights throughout legal proceedings.

About the authors

Sandra Duerden, Partner, Mourant

Sandra is a Partner in the firm's Litigation team in Guernsey, and specialises in commercial litigation and trusts disputes.

She has a particular interest in commercial or trust disputes involving private international law aspects and cross-border disputes. In addition to her contentious work, Sandra has a strong expertise in intellectual property law.

Ledie Toscano, Associate Director of Digital Forensics and eDiscovery, Mourant

Ledie oversees the global Forensic and eDiscovery services at Mourant, specialising in international multi-jurisdictional cases. With a background in eDiscovery spanning over 15 years, she navigates all facets of digital forensic collections and eDisclosure projects.

Her extensive technology expertise includes roles ranging from Financial Analyst and Fraud Investigator to Director with leading eDiscovery service providers worldwide.

Ledie is proficient in employing diverse forensic and legal technologies, such as Advanced Analytics, predictive coding, Technology Assisted Review, and Artificial Intelligence.