Large-scale corporate litigation usually means a blizzard of documentation. With the increasingly complex nature of globalised business, this can mean hundreds of thousands of documents and millions of pages. But fortunately - just as things seemed to be becoming unmanageable – salvation appeared in the shape of technology to enable lawyers to store, sort and select what was relevant.

The availability of paper documents in electronic form led to e-discovery and - in both the UK and the US - having the right technology rapidly became an important feature in a law firm’s arsenal. The American magazine Corporate Counsel said earlier this year: “Law firms realise that technology offerings are a way to distinguish themselves in a crowded market. So they’ve been beefing up their personnel in areas such as e-discovery.”

In fact, a survey by Law Firm Inc. showed that 70 per cent of America’s top 200 law firms operated at least ten extranets. In short, technology is now critical to the discovery process on both sides of the Atlantic.

But what looked like two steps forward also included one big backwards step.

E-discovery looks great on paper. But once you start hitting the keyboard huge problems surface. Above all, there is the fact that no matter how sophisticated your law firm’s software, if it cannot talk to the other side then all you have done is created another set of problems. Solving this means further interventions adding time and money to the job.

According to Vince Neicho at Allen & Overy: “If law firms’ IT systems cannot speak to each other then it’s very frustrating. To deal with it you need to build a filter for each individual firm so that you can communicate with it. And if you are dealing with a score of firms then maybe each one will need a different filter.”

The costs of all this can be very considerable. The inconvenience even more so. But what can be done?

To deal with the underlying issue a number of leading UK law firms got together to discuss it through the channels of the UK-based think tank Litigation Support Technology Group (LiST). LiST’s membership includes all of the “magic circle” firms and a number of US and Australian firms. The recent appointment of Its reputation has been enhanced recently by the appointment of Master Whitaker, one of the judicial pioneers in the use of technology in civil proceedings, as honorary president has enhanced its reputation.

The result of the discussions was the setting up of the LiST Electronic Data Exchange (EDE) Working Group, consisting of representatives from Allen & Overy, DLA Piper, Simmons & Simmons, Freshfields and Ashurst. The view among the EDE was that the need for action was urgent not least because there is likely to be a significant shift soon from the creation of electronic files from paper to the exchange of parties' source data in its native format. The aim, therefore, according to Mr Neicho, was to establish a “kind of legal Esperanto” so that all these IT systems could communicate with each other.

Good progress has been made. Last Autumn the group met with officials from software group Adobe to discuss LiST's proposals for developing a standard format for the exchange of electronic documents in England and Wales. This led to Adobe agreeing to explore the establishment of what they said would be “a minimum standard that customers should insist upon when PDFs are created”.

Building on that success, LiST was able to announce an equally significant advance at the end of last month when it published in two parts the details of its proposed groundbreaking Data Exchange Protocol.

Part 1 of the protocol (which relates to Disclosure Documents) is in its final form while Part 2 (which relates to Disclosure Data) is now out for discussion. Together, the two parts form the complete “LiST Group Data Exchange Protocol” which, ideally, should be used whenever electronic material is exchanged between legal organisations.

This development could be of enormous significance. According to LiST, the proposed protocol is: “The first credible attempt to set a standard for the exchange of electronic disclosure material. As this Protocol becomes more widely adopted the working group anticipates that it will evolve into an XML-based legal standard.

“This Protocol is a fundamental and important step forward in helping to reduce the costs of electronic data and document exchange within the disclosure process. Of necessity, this Protocol is a living document and LiST will publicise widely and seek consultation on any proposed significant changes as they may arise from time to time.”

Although part 2 of the Protocol is highly technical, the organisations involved have access to the relevant technical skills whether in-house or through external consultants. “This Protocol is not based on the current capabilities of any one litigation support system but, rather, has been designed to work with any system,” LiST said.

To comply with the Protocol an organisation would need to put in place two filters - one to export data from their system in compliant format and another to import it. Once they have been created, the filters can be re-used without adaptation whenever compliant data needs to be sent or received.

Assuming the protocol is adopted as the industry standard the implications for easing e-discovery are enormous. It will be another major “first” for this country at a time when the US has nothing comparable. Like common law, this could just turn out to be another of our great exports.

For further information on LiST visit http://www.listgroup.org/. Comments on the protocol should go to def@listgroup.org.

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