Litigation Support and
Electronic Disclosure
Litigation Service Providers
This series of articles looks at each of the
elements in the
process of giving electronic Disclosure - eDisclosure - in litigation or
analogous proceedings.
The article which introduces
this series, eDisclosure for Everyman, and
in particular the section beginning
here suggested that the
businesses which provide litigation support services do not, at first sight,
appear to be targeting solicitors dealing with everyday Disclosure
exercises. My recent article for the Society for Computers & Law was called
Uncovering the Mysteries of Disclosure. The chief mystery, for many,
is what Disclosure services are on offer and at what cost.
This article looks at the
first question - what will the litigation support service providers do for
you? This article assumes that you do in fact want to delegate all or
most of the task. A future article will show how much you can do in house if you
choose to.
It is not hard to find out
what the litigation services are called - they are listed on the home pages
of the providers' web sites, and are concisely explained within. This
article
relates those terms to the routine Disclosure exercise covered in the series. This, by
way of reminder, comprises half-a-dozen ring binders and a couple of CDs of
Word documents, Excel spreadsheets and e-mail files. Your best guess is that
there are about 5,000 documents in all. What stages will turn those into an
electronic Disclosure database?
Data Collection
This may amount to no
more than sending a van to pick up your boxes of paper and electronic
media. My article The Sources of Disclosure documents
and the definition of a "document" in
Part 31 of the CPR may, however, prompt you to uncover a wider range of
sources. The data collection may include hard drives, backup tapes and
key-ring storage devices, and the exercise becomes proportionately extended.
I use the word "proportionately" with reason - see the caveat beginning
here as to the scope of the
search.
Data Processing
At its simplest, this means
pulling out as much information as possible from the electronic files -
Word, Excel etc - and making a database of them linked to a copy of the
file. Some of the data is visible on the face of the document - its name and
date for example - and some is hidden. Its quality and value will vary - see
the section on metadata in my article
Documents, Disclosure Data and Metadata. You may say that you want only
the information which will appear on the face of your list. Perhaps, but it
costs little more to extract it all, and the alternative - typing it all up
by hand from the face of each document - makes no sense at all in any terms of
time or economics.
The electronic files
These will take two possible
forms - a copy of the original electronic files such as the Word documents or
messages extracted from the mail folders, and a .tif or .pdf image of the
electronic file.
Why might you need both? The
electronic file should be exactly as the sender or recipient saw it,
complete with all its metadata. It is the equivalent of the original paper
document. It requires, however, that your PC has the software necessary to
use the file. You cannot automatically stamp it with a consistent numbering pattern nor
take it for granted that everyone else involved can open it. An image file
should be universally readable, free from tampering, smaller in size and
therefore more portable.
Scanning
Paper must be scanned
into an image format, that is, as a .tiff or .pdf. It is then of the
same kind as the electronic files and messages and can be handled in the
same way.
Coding
There is no magic about
coding, which means no more than attaching labels to a document record -
objective labels like the date, and subjective ones such as whether or
not it is disclosable. Messages and electronic files can to some
extent be coded automatically - they carry their own objective
properties to a greater or lesser degree. These may be inadequate or
downright inaccurate, but they make a start in document identification.
Scanned paper carries no
such useful baggage. Although you may extract its text for searching
purposes by using OCR (Optical Character Recognition) software, the
structured data - date, sender, subject etc - can only be found by
reading the document and typing up the relevant information.
This is a cost which
must be incurred somewhere. A good litigation support provider employs
teams of people who work to a consistent rule-book and subject to a
formal review process.
Filtering and
De-Duplication
Any large collection of
documents will include exact duplicates, near-duplicates and file-types
which are automatically irrelevant.
The latter include logo
files and legal disclaimer files stripped out of messages and are
generally easy to identify (as long as the rule applied errs in favour
of leaving in anything which is not patently irrelevant).
Duplicates raise
difficulties. At its simplest, a duplicate might be an exact copy of the
original - same size, same date etc. Such files have a unique
"signature" (its MD5 Hash value) which is different from that of the
same file resaved with one minor change, and it is this which might
allow the automated removal of the file from the collection.
I say "might". There is
a big difference between an exact copy taken from the same user's backup
tape and an exact copy found in another user's folders or mail files.
The mere fact that the second user had a copy might be relevant, and an
over-enthusiastic de-duplication exercise may lose that information.
A good services provider
will distinguish between these circumstances and will remove the
duplicate or leave it flagged for review as appropriate. The same is
true of near-duplicates
Audit and Review
I group these together
because both terms connote a secondary pass through the documents, but
they embrace a wide range of activities.
At its simplest, the
purpose of an audit is to check that everything has been done and done
properly, and to provide a trail from the data back to the source.
A review may imply more
- anything from tidying up the data (e.g. conforming names) to adding
additional layers of coding beyond what has been deduced automatically
and on to actually handling Disclosure.
Some of this - the basic
audit for example - is built in to the quoted fee. What else they do
depends on what you ask for, and will be priced accordingly.
Hosting
The litigation services
provider will deliver the data back to you in any form you like for
import into your own litigation support system. If you do not have one,
they will recommend one.
It is increasingly the
norm for such systems to be hosted externally, that is, made accessible
over the Web by being placed on a secure server. Most big litigation
support providers offer their own hosting service. If they do not, or if
you prefer, the hosting can be handled by a third-party hosting company.
Either way, it is a service whose costs are ascertainable in advance.
Printing
Although one of the main
aims of the idea of electronic Disclosure is to cut the amount of paper
used, it is often necessary to print the images. A litigation support
provider has high-speed printers and can add numbering or other
identifying information to the pages as they print.
These are just the basic
services. A big provider will handle every other aspect of Disclosure for
you and you can outsource the whole process, from first instructions,
through Disclosure and exchange, to issue analysis and on to trial
presentation, using their resources instead of yours.
Will you want to do this?
Possibly, but my purpose here is simply to summarise what the litigation
support companies do, not necessarily to urge you to place all your work
with them
A future article will
consider the alternative - that you do most of the work in house - and the
(more sensible) middle course in which you divide the tasks between you and
outsiders according to your skills, your budget and the nature of the work
in hand.
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, you think that I might be able to help you,
please contact me.
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