eDiscovery strategy – back to basics!

Disputes generally centre on a small number of critical documents and the process of identifying, capturing, processing and reviewing material should:

  1. Balance the issues of Cost, Proportionality and Risk
  2. Work within the applicable procedural Rules
  3. Result in a defensible process being adopted to manage the process of disclosure:
    • Capture
    • Indexing
    • Review
    • Production

A famous visual “model” of the steps involved in managing data is useful in illustrating how the volume of material at the outset of the process is whittled down whilst the proportion of relevant material goes up during the course of the process has been published by the EDRM – a coalition of consumers and providers working together since 2005 to create practical resources to improve e-discovery and information governance:

EDRM-Chart_v3

Often the material has to be collected and reviewed to determine whether or not it is disclosable and the extent of the disclosure obligation to search varies on a case-by-case basis, applying a test of “Proportionality” to:

  • balance the importance of the issue(s)
  • against the cost of searching for, reviewing and delivering up relevant material for review.

so as to form a view as to whether – and, if so, to what extent edisclosure/ediscovery is appropriate a first step (having ensured that those holding data have been advised of the need to preserve it) is to obtain information as to what material potentially exists and where it is located.

Often the most practical way of starting this process is to seek information from the witnesses of Fact to establish what material is potentially available.

This can often be done by circulating a Questionnaire to:

  1. the Witnesses of Fact and
  2. also the IT Team (to get an overview of the IT systems).

Armed with that information it is then sensible to have a go at completing the Electronic Documents Questionnaire (“EDQ”) which was introduced in 2010.

In the past the Civil Procedure Rules simply stated that it:”may be helpful to exchange.. in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings

Our view is that it is just about essential that the EDQ is completed as part of the process of preparing a Report which explains:

  • what documents exist or may exist or may be relevant to the case;
  • where and with whom those documents are or may be located;
  • what the broad range of costs that could be involved in giving Standard Disclosure including costs to search and disclose electronically stored documents;
  • which of the menu options the party is seeking under CPR r 31.5(4) and
  • how it is expected disclosure should be carried out under CPR r 31.5(5).

 

When is eDisclosure necessary?

Subject to the views of the Court and other parties, the short answer to the question when eDisclosure is necessary is that it depends on a number of factors which include:

  1. what is involved,
  2. what the parties want to do (subject to Court approval, they even have the option to agree to dispense completely with disclosure) and
  3. what material is potentially available which can be reviewed for disclosure.

As a very rough guide, our experience is that:

  • If all parties are happy to work from hard copy (i.e. paper) documents and the total volume of material that is likely to be the subject of disclosure by all of the parties is under around 3,500 pages (10 lever-arch files) then there is a respectable argument that it will be cost effective to work from hard copy material (although, even then, documents such as workbooks and databases will almost certainly be better dealt with in electronic form)
  • If it is possible to access the original electronic “source” files (most commonly emails and their attachments, Microsoft Office documents and Adobe PDF files) then any material which needs to be reviewed which exceeds the 3,500 page / 10 lever arch file threshold can be more efficiently dealt with electronically – and as the volumes increase beyond that sort of level so the costs savings and efficiencies which can be achieved become ever greater – to the point that in cases involving hundreds of thousands of documents it would be almost unthinkable / uneconomic not to deal with the material electronically. There are spectacular benefits in working with material in this format (not least the ability to “de-duplicate” the material at the click of a switch).
  • If the material is substantially in hard copy form it can still be economic to scan and code the papers and thus convert them into electronic format but this is always going to be a “second rate” option when compared with the prospect of collecting the original electronic files – not only is the end result less satisfactory (manually coding documents with details such as date, author and title is a labour intensive and subjective task and attempts to extract the text from the scanned images using Optical Character Recognition software are never likely to achieve 100% accuracy).

The cost of the exercise will be determined by the approach adopted – in many cases it is possible to rein in the scope of the disclosure exercise in a defensible way and avoid the “brute force” (and expensive) approach of collecting and processing everything by identifying the relevant data sources in a logical, documented and “defensible” way which can be explained to the Court and other parties.

The fact that a source of potentially responsive material exists does not necessarily mean that the material has to be processed and disclosed – the obligation is to tell the Court and other parties what the potential sources are and it doesn’t necessarily follow that it will be proportionate (having regard to the cost of the exercise) to search for, collect, review and deliver up that data:

“It must be remembered that what is generally required by an order for standard disclosure is “a reasonable search” for relevant documents. Thus, the rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found. This attitude is justified by considerations of proportionality.” Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc (2008).

Our experience is that:

  • the more resource that has been devoted to setting up systems and working practices to manage data in a logical way – commonly described with terms such as “information governance” or “litigation readiness”
  • the cheaper the cost of implementing (and being able to demonstrate) a defensible approach in the context of a particular claim.

At one extreme we have been involved in cases where there has been a need to perform a general search of an organisations IT infrastructure because relevant data has been spread across the network over many years – with:

  • no control over who stored what where
  • no plan to deal with data migrations from obsolete system
  • little or no knowledge as to what else had been saved by users in other locations, not uncommonly off the network of the business, either on USB sticks, or more commonly, somewhere on the internet.

In contrast, an organisation which has invested in creating policies and systems to save material in some form of directory structure or within a Document Management System (possibly, leaving only the challenge of getting to grips with the controlled chaos of email!) will be “rewarded” in the sense that the time and money spent in creating those systems is of general benefit in assisting to find relevant material when necessary at a much more modest cost.

As a general proposition, if it is possible to identify the existence of native electronic files – be they on an Email / Document server or elsewhere – then this material should be treated as “gold dust”. Provided the material is collected in a forensically sound manner, thousands of documents can be examined, de-duplicated searched for keywords for a few hundred pounds and the alternative, working with hard copy will, save in the smallest of cases, rapidly be uneconomic.

Although it may present challenges, given 99% of data now created is created on electronic systems it is in our view self-evident that the Courts, lawyers, experts and witnesses are all in the future going to expect to work with the data in that format – to the point that it will only be in exceptional cases that the parties work from hard copy in 10 years time.

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