Date 1 December 2010
Disclosure is the task that litigants love to hate. Some are so keen to avoid it that they will settle to avoid it and over the years I have seen perfectly good claims and defences compromised on less advantageous terms than could have been achieved if disclosure had been completed. Nowadays, with the additional challenge of dealing with what is often an amorphous mass of electronic material, the prospect of preparing for disclosure can seem even more daunting.
Whilst the growing importance of electronic documents has undoubtedly caused issues for clients and lawyers, new technologies and project management skills have been developed which can go a long way to addressing them. These new skills and technologies can also deliver real benefits if properly deployed during the early stages of a dispute to help to build and strengthen cases. Before looking at these further it is worth examining briefly the steps involved in a typical e-disclosure project of the type designed to produce a collection of documents for inspection by an opponent in litigation.
1. Identify Potential Sources and Volumes of Documents
An obvious first step perhaps, but it is essential to consider all potential sources of documents and what they may contain as well as the volume of material they may yield. At the outset, and often as a matter of necessity if you’re a defendant having to respond to the notification of a claim at short notice, your initial estimates may well be greater than what is actually required. Sources and volume will be reduced as your view is refined once the real issues in the case become clear and the factors discussed in Clare MacKay’s article are applied. For example, allegations of misrepresentation in relation to a long term supply contract may suggest that all documents created by your sales team in relation to it will be relevant. If your own investigations and/or pre-action correspondence narrow the allegations to particular aspects of the transaction and members of the team then only material relevant to these will need to be searched.
2. Implement a Litigation Hold
In short, this means taking steps to ensure that any potentially relevant documents are not either destroyed (inadvertently or otherwise), annotated or amended once a dispute is reasonably contemplated. You have to do this whether or not you have a document retention policy and instructions to staff to preserve documents should be in writing so these can be referred to in case anything relevant is accidently lost as this will be useful evidence to defend any allegations of deliberate destruction. Staff should also be told not to create any documents which discuss the dispute until legal advice has been sought on how to ensure that these do not have to be disclosed. This type of document can easily contain admissions which will be seized on by your opponent.
3. Identify and Agree the Scope of Your Search and Search Methods
Having identified where to search and what to look for you need to develop a plan to execute a reasonable search and agree it with your opponent in accordance with the provisions of CPR 31 and its practice direction. In view of the emphasis on minimising costs and proportionality, it is well worth engaging electronic disclosure consultants to prepare budgets for the exercise and reports on any specific issues which may come to light in terms of accessing particular documents as these can be used to resist your opponent’s attempts to widen the scope of the search. For example, costing and explaining the difficulties in restoring old back up tapes or obtaining information from legacy systems (like that old “green screen” accounts system you used to use) and explaining why a full scale forensic collection is inappropriate: see Charles Holloway’s article. They can also give practical guidance on how to attack your opponent’s proposed search from a technical stance and maximise your chances of getting access to the documents you want to see from it.
4. Execute the Search and Process the Results
Once the data has been harvested it is processed to whittle it down to the set of documents which your lawyers will review. As the lawyers’ time is invariably the most expensive element of a disclosure exercise increasingly advanced applications are used to apply date ranges to eliminate material which falls outside of set parameters, remove system files, de-duplicate e-mail chains and attachments and apply key words to produce a collection which contains only what they really need to see.
5. Review
Lawyers review the processed raw data to identify the documents which actually fall within the ambit of disclosure. The review will usually be conducted electronically which increases the speed of the exercise and is more cost effective than a traditional paper review. Review platforms typically allow documents to be associated to specific issues in the case as they are reviewed which assists in the later preparation of witness statements and experts’ reports. Online platforms also often have facilities which enable the lawyers to put questions on documents to clients which also speeds up the process of producing the final collection which will be disclosed.
6. Produce
A hard copy list of the documents which are available for inspection is produced by the review platform. If your opponent wishes to review the documents electronically, the platform also creates a load file containing the documents themselves which can save considerable copying costs in document heavy cases.
7. Review Your Opponent’s Documents
If you have used an electronic review tool to prepare your own disclosure, it can (and should) be used to review your opponent’s documents. In addition to facilitating a faster and cheaper review of these, its search facilities will allow you and your lawyers to search and mine them for data as well as annotate them in ways which are simply not possible with paper.
Additional Benefits
The use of e-disclosure technology should be considered carefully when you are investigating and preparing any claim or defence. It can identify key documents which might not otherwise have come to light until the disclosure phase quickly and help to develop and substantiate case theories. Any particularly pertinent material can be deployed to try to pressure an early settlement, or in the case of adverse documents, enable you to gauge the reasonableness of an early, commercial compromise.
Applications which are particularly suited to this stage of a case offer features such as the ability to create graphical representations of e-mail traffic which show who was talking to who and when without the need to plough through inboxes and sent items which can deliver significant savings in terms of lawyers’ and your own internal management time. Index Engine technology is also well worth bearing in mind as this can enable you to process and look at what is on a back-up tape for a few hundred pounds without having to go to the time and expense of restoring them.
So, where does this leave us? Disclosure is still a large part of any piece of litigation but there are tools and skills in the marketplace which mean it should not be the spectre of old. A relatively modest investment in them, particularly early on in a case, can pay significant dividends later in terms of time, money and strategic advantage.
If you would like more information or advice relating to a specific matter, please do not hesitate to contact Simon Walsh on 01727 798085 or by email at simon.walsh@salaw.com or any member of the Commercial Dispute Resolution team.
Click here to read Charles Holloway's article on e-disclosure: "Five Top Tips to Keep Down the Costs of E-Disclosure".
© SA LAW 2010
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.