Litigation Support and Electronic Disclosure

e-Disclosure - the basics

E-Disclosure is not just for the biggest document-heavy litigation cases, although the litigation support suppliers seem to imply as much. Read a basic primer on your e-Disclosure options before you begin to list your documents

An earlier article left you resignedly sending for a trainee to organise the printing, copying and typing up of a list of documents from half-a-dozen ring binders and a couple of CDs of Word documents, Excel spreadsheets and e-mail files which had arrived whilst you were at a high-level conference on e-Disclosure.

Your guess is that between 2,500 and 5,000 documents are involved, but whilst you can more or less measure paper files by eye, it is hard to assess what is on the CDs. The enthusiasm with which the expert speakers have infected you has evaporated a little with the realisation that, whilst your existing knowledge of Part 31 CPR has now been topped up with a theoretical understanding of metadata, FSA best practice and multi-jurisdictional Disclosure, you do not have a clue how to start applying what you have learned to simple Disclosure of the boxes of papers and disks on your desk.

Yours is not a small firm, your client is not unimportant, the dispute is not a trivial one, and the document population not insignificant. Your resolution to ring up the nice man from the legal services company falters, however, when you look at his web site and see the summaries there of their recent major jobs, all of which imply that large teams were mobilised at short notice to process millions of documents in a foreign jurisdiction within hours.

The speakers at your conference painted eloquent pictures – indeed, perhaps showed you screen-shots - of the software they use, possibly as part of an exposition on the value of metadata. You have looked at its web site too, and whilst the screen-shots look comfortingly like Windows Explorer, and convincingly display an extract from the metadata, you cannot begin to see how that relates to the list of documents which you are used to and which your opponent will expect, still less to the contents of the boxes on your desk.

That and the fact that neither the service provider nor the software supplier publishes a price list combine to put you off the whole idea of giving electronic disclosure. Thus the trainee, the typist, the printer and the copier – and a lost opportunity.

Let us add another dimension. A letter arrives from Rott, Weiller & Goebbels LLP who are instructed for the other side. They do intend to give disclosure electronically and expect you to do so as well. They "invite" your proposals for the exchange of data electronically and expect a detailed summary of volumes, file types, field names and data standardisation rules before the Case Management Conference next month.

I add this last element cautiously because my primary proposition – that much more litigation should be run electronically – stands on its own feet and does not depend on liaison with others or pressure from external sources to make it relevant and cost-effective. Exchange of disclosure information with others is a sufficient, if not a necessary, ground for going down the e-Disclosure route.

Rott, Weiller's letter might, however, be the factor which makes you recall the trainee and re-appraise the e-Disclosure question. Before you put a call through to the bureau (they don't like the term but one tires of typing "legal services company") you might want to get up to speed on the options – including the choice between Bureau A and Bureau B and between Software X and Software Y.

I will not name names here but I will outline the stages which you will go through to turn those boxes of paper and CDs into an active part of your case preparation and into holding your own with Rott, Weiller & Goebbels LLP.

To do so, I will strip out of the summary many of the things which, important though they are in many cases, are not necessarily relevant to everyday disclosure.

It is a bit late, for example, to worry about your clients' general document retention policy. You will advise them, of course (and straight away), about their obligations to preserve anything which may be relevant to this case and as to the scope and import of the certificate which they (not just you) will have to sign in due course, but they cannot now alter the potential document population.

You will tell them about the wide definition of a "document" and get them thinking about other existing sources of "documents", but I will not divert from my simple summary to cover backups, text messages, Blackberries, USB pen drives and web chat threads.

You don't need me to tell you about privilege, and I leave it to you (for these purposes) to worry about EU privacy and data protection rules and their possible conflicts with disclosure obligations. I will assume that no special rules (of e.g. the SFO, the FSA, the DoJ, or the SEC) apply and that the position is not complicated by any jurisdictional points.

In other words, I will ignore all the complicating factors which your conference covered and concentrate on the primary task of giving, and being ready to receive, disclosure electronically.

Part of the purpose of this site and of my business is to remove some of the layers of mystery and to make electronic disclosure accessible to users with little or no experience of it.

This is one of a series of articles aimed at demystifying the processes of e-Disclosure. The series includes:

Introductory

e-Disclosure for Everyman

e-Disclosure - the basics

Getting started

Detail

The sources of Disclosure Documents

Documents, Disclosure Data and Metadata

Choosing litigation software

Litigation Support Providers

If, meanwhile, you think that I might be able to help you, please contact me.

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