Litigation Support and Electronic Disclosure

Why do we need a Data Exchange Protocol?

This is one of a series of short articles explaining pending developments in the exchange of data in litigation. Much work is being done on this in the UK (see links opposite), in the US and in parts of Australia. This is all at a fairly high level. Part of my purpose is to help the interested non-expert to keep up.

LĩST, the Litigation Support Technology Group www.listgroup.org introduces its draft Data Exchange Protocol with a statement as to why it is necessary:

"The amount of original evidence (Disclosure Documents) either created electronically or converted to electronic format during the life of a case is increasing, yet the practicalities of dealing with it remain complicated, time-consuming and expensive. This Protocol seeks to simplify and speed up procedures and reduce cost by establishing sensible standards that all parties can follow to improve the provision or exchange of that evidence".

LĩST's target audience can readily accept this as a starting-point. Others may appreciate a little more background.

Ignoring technology for the moment, there are two parts to the exchange and inspection of disclosure information in conventional terms. A party serves a List of Documents and makes available for inspection the documents themselves. A traditional inspection involves going to the offices of the solicitors making the list, reading through physical files with the served List as an index, and then asking for photocopies of those which are thought relevant. Such physical inspection of originals allows you to examine minutiae, both those intrinsic to the document - annotations, staple marks etc - and external factors such as whose file it was in?

Most "original" documents today are electronic - Word or Excel files or e-mail messages. Their intrinsic minutiae includes the filename and the metadata - the data about data stored within them. A list of such documents, or at least the first draft of it, can be largely built directly from the metadata and supplemented by typed information about paper documents (which are made electronic by being scanned as images).

This will be expanded upon in a separate article. The reason for this slightly discursive introduction to the Data Exchange Protocol is to emphasise that where there used to be one way of disclosing, inspecting and exchanging documents, there are now many. You traditionally typed up a list in the 3-column format ordained in the 1965 rules, showed your opponents the paper files (and one piece of paper is very much like another in essentials) and provided photocopies on request. There are now multiple file types, more available information, and more, and more useful, ways of handling both the documents and the information about the documents.

Anyone could read your paper documents and printed list. The same is not necessarily true of your electronic documents. The differences may lie both in the electronic format and in the key terminology used, particularly names of parties to e-mails My client used Microsoft Word and Excel; yours used WordPerfect and Quattro. Mine sent his mail via Outlook and Exchange; yours used Lotus Notes or Groupwise.

Your client's CEO called himself Sir Roderick Ramsbottom, but different people at my clients had him down in their mail systems as

Ramsbottom Rod,
Ramsbotham,R,
Ramsbottom, Roderick,
rramsbottam@yourclient.com, </O=MYCLIENT/OU=GB02/CN=RECIPIENTS/CN=RAMSBOTTOM>
and (in one case) as "Cuddles".

Your system uses dates in the format dd/mmm/yy. Mine will only work with dd-mm-yyyy.

None of this mattered (much) in the days when every document was printed and every entry had to be typed by hand into a list of documents and was not searchable anyway. It matters very much when the aim is to import data seamlessly into each others' systems and start searching and analysing it. There are three further aspects to consider - the definition of a document, the rules for defining a disclosable document and, not least, the sheer volume of documentation, none of which I will pause on in this context save to emphasise that significant benefits ensue if the parties can easily exchange all this information as data.

Take it for granted for the moment that this is a desirable aim, an achievable aim, and one which often (not always) repays the investment in it. Accept on trust for now that these are not deep mysteries available only to large firms with dedicated teams running complex software on enormous cases. Anticipate that it will not be long before the parties to any fast-track or document-heavy case will be asked at the first CMC what technology they will be using.

If you accept this much (and you are unlikely to have read this far if you do not see the possibility) then it becomes easy to see why the factors outlined above require some rules. That is the answer to the question posed at the head of this article - why is a Data Exchange Protocol necessary?

Further articles on this site will address the points which I have here asked you to take for granted. For now you may like to have a look at what is happening in the English jurisdiction towards the development of the LĩST Data Exchange Protocol.

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