Articles in this Series

LĩST - the Litigation Support Technology Group

What is LĩST?

The LĩST Draft Documents

The LĩST draft Practice Direction

The LĩST Data Exchange Protocol

Disclosure Documents
Disclosure Data

Why a Data Exchange Protocol?

LĩST Publications

Some LĩST definitions

Document
Anything in which information of any description is recorded as defined in CPR Part 31.

Disclosure Documents
Documents disclosed by a party in accordance with CPR Part 31

Disclosure Data
Electronic data which identifies Disclosure Documents, including for example the type of Document, the date of the Document, the names of the author/sender and the recipient, and the party disclosing the Document.

Litigation Support and Electronic Disclosure

LĩST Data Exchange Protocol Part 1 of 2 - Disclosure Documents

LiST's Data Exchange Protocol appears as two documents, Part 1 about Disclosure Documents and Part 2 on Disclosure Data. Both can be found on LiST's Publications page.

See also my commentary on LiST's Data Exchange Protocol Part 2 of 2 - Disclosure Data

Why the Protocol is necessary

I will not purport to show this in a graph because that would imply that I (or anyone) knows the actual figures involved, but picture a line graph, with the last seven years as the horizontal axis, and the number of disclosable documents as the vertical axis. Three lines represent paper documents, electronic documents and total documents.

The line for paper documents would slope downwards, showing paper declining both absolutely and relative to the overall document population. The line showing electronic documents would rise by very much more than the fall in paper - that is, the growth in electronic documents far outstrips the reduction in paper. As a result, the line for total documents rises steeply.

Over the same period, the pressures to deliver an outcome in litigation in a timely and cost-effective manner have increased sharply. The pressures come from government and the courts, from clients, and (often overlooked this one) from the need to retain London's place as the forum of choice for international litigation.

This is the context in which LiST, the Litigation Support Technology Group, is devising procedures to handle electronic documents. As they put it:

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.

LiST's Data Exchange Protocol is in two parts. I have commented separately on LiST's Data Exchange Protocol Part 2 of 2 - Disclosure Data This section covers Part 1 - Disclosure Documents.

The meat of Part 1 begins at section 3, which says that it may be necessary to provide:

(A) for a Disclosure Document that was originally created electronically:

(1) the Document in its Original Electronic Format (or "Native Format" ); and/or

(2) the Document converted to an Electronic Image ; and/or

(B) the Electronic Image of a scanned paper Disclosure Document

Even this simple recital, trite stuff though it is to those familiar with this area, has the potential to confuse.

(A)(1) is a Word document, an Excel spreadsheet or something similar, provided in its original format. It may have been renamed to match its number in the Disclosure List, but it should not have been resaved and should bear the date on which its author saved it and in all other respects be "original". It is the equivalent of an original paper document in pre-electronic Disclosure.
(A)(2) is that same Word or Excel (or whatever) document supplied as an image file as well as or instead of the Native Format version. The image file might be a .tif image or a .pdf. LĩST favours single-page .tifs. It is described as "converted" because the easiest way of turning a Native Format file into an image file is to save it into the image format rather than print it to paper and scan it. The point is that any such image format is near-universal whereas a Word file is no use to a recipient who does not have Word - thus the need for the two parts of (A).
(B) is a document which only exists as paper and which must be scanned to be made into a electronic document.

Native Format Documents

There is little to be said about these. They are what they are - Word files, Excel spreadsheets, messages extracted from a mail system as stand-alone native files or, perhaps, something more esoteric which requires special software to open and use them.

The main point about them is that much of their value in evidential terms may lie in the information about their creation and use - their metadata - which may be lost merely by saving or renaming them. See my article Documents, Disclosure Data and Metadata for more on this.

The Protocol provides that a copy of the document is renamed with its Disclosure List Reference, the unique identifier which a document has in the List of Documents. What was called "Draft sales agreement.doc" becomes 10003458.doc (or whatever), with the List of Documents and the matching Disclosure data holding the original document name and providing the link between them. If questions arise as to the document's metadata, the original file can be produced with its original name.

Images of Native Format Documents

Some litigation support systems will not support all native format files types and a supply of native format files is of no use to them. Further, Word and other files may appear differently on different computers if the default Word settings or the printers are not the same as those of the originator.

Parties often agree to exchange images of native files as well as or instead of the native ones (if they do not take the native files, they should ensure that they retain their right to inspect them).

There are two ways to make .tif images from such documents. The long and expensive route is to print them to paper and then scan the paper. You have only to say this to see that this is daft. LiST recommends instead that the native documents be printed to a .tiff image driver, that is, a software tool which produces an image file instead of paper.

Images Generally

The Protocol requires that images made from native format files and those which are scanned from paper are provided as single-page .tiff images, that is, with one image .tiff file for each page of the document. The alternatives would be multi-page .tiffs (all the pages on one document in a single image file) or Adobe Acrobat .PDFs.

The choice was made by majority vote, that is, on the basis that the largest number of relevant LiST members had litigation support systems which required single-page .tiffs.

The logic is unarguable, given that LiST's primary objective was to suit its members and where its members comprised the main users of litigation support systems in the UK. The consequence is that a numbering scheme is necessary which both links images to entries in the list of documents and links pages (in sequence) within images. Provided that the Protocol's standards are complied with, it should not be difficult to turn multi-page .tiffs into single-page .tiffs and vice versa.

I will spare you the details of all this, adding firstly that it is not as complex as it looks and secondly that parties are free to agree something different if this arrangement does not suit them (I have yet to come across parties agreeing to split up images only to find that both them use multi-page images, but I am sure it will happen)

Directory Structure

This again is too dull to summarise - useful yes, necessary to define, yes, but tedious to read about. The Protocol defines precisely the folder structure which should be adopted for files of different types and provides detailed naming conventions. It also covers the exchange media - the physical vehicle (CD, DVD or whatever) used for transporting files between parties.

We can look it up when we need to. As with everything else, parties are free to devise some other arrangement.

Image .TIFFs and Acrobat .PDFs

I have mentioned above LiST's decision to settle on singe-page .tiff images as the medium for image files. This apparently aroused "passionate comment and feedback", not least from Adobe who were keen to see their Acrobat .PDF format more widely used in litigation support systems.

A meeting took place between LiST and Adobe in September 2006. The upshot was no change in LiST's recommendation as to single-page .tiffs. A joint press release resulted, however, in which LiST said that it "welcomed the continuation of the dialogue between Adobe and leading UK litigation support software providers and looks forward to a time when full PDF functionality is embraced into their products to complement the existing product functionality that their users enjoy".

In other words, if Adobe can persuade litigation support software companies to make Adobe .pdfs work as well as .tiffs do then LiST will look again at the subject.

The press release can be found as a link from the Release Notes accompanying the draft Protocol on LiST's Publications page.

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