Litigation Support and Electronic Disclosure

A Reading List

This list is primarily intended for those interested in my information sessions, whether for Judges involved in case management under the Civil Procedure Rules or for those who appear before them.

The fact that a source is listed here does not mean that it will necessarily be discussed. It is not suggested that you read them all. A quick dip into some of them will give you an outline of what is involved.

I am very happy to field questions and comments about anything said here. Use the Contact link above.

The Civil Procedure Rules

Few of us, however, keep the details in our heads and it may be helpful to have references to:

Part 1 - the overriding objective

In particular the elements expressly referred to in 1.1(2) as components in "dealing with a case justly" and the active case management aims set out in 1.4(2).

Part 3 - the court's case management powers

Specifically, the power in 3.1(1) to make any order "for the purpose of managing the case and furthering the overriding objective" and the 3.4(2)(c) power to strike out a statement of case where there has been a "failure to comply with a rule, practice direction or court order".

Part 31 - Disclosure and inspection of documents

31.4	the wide meaning of "document"
31.6	the scope of standard disclosure and the word "only"
31.7	the duty of search and its provisions as to reasonableness
31.12	orders for specific disclosure
31.13	disclosure or inspection in stages

Practice Direction to Part 31

2	enhanced description of the 31.7(2) duty of search
2A.1	"document" includes electronic documents, backups and metadata
2A.2	parties "should" discuss sources before the first CMC
2A.3	parties "should" co-operate as to the format for exchange
2A.4	examples of factors relevant to the 31.7 duty of search
2A.5	searching electronic sources e.g. by keyword searches
4.2	defining in the Disclosure Statement any limits on the scope of search
5.5	specific Disclosure, the "train of enquiry" provision in 5.5(1)(b)
Annex	the form of Disclosure Statement

Queen's Bench Guide - 7.1 Case Management

See 7.8 on Disclosure and Inspection, and specifically 7.8.5 on "ways of limiting the burden of disclosure" including staged disclosure, disclosure for a limited purpose and the alternative of a request for information.

Commercial Court Guide

The Commercial Court Guide expands significantly on the CPR's management powers, both generally and specifically in relation to disclosure. See in particular:

D	much more closely-defined requirements for CMCs, including those as to early CMCs, the court's powers to fix a CMC on its own initiative, the information to be lodged, and generally a much more hands-on role
E1.1	express statement that anything wider than standard disclosure "will need to be justified"
E2.1	more detailed summary of the Disclosure options to be considered, including sample disclosure and disclosure in stages
E3.10(a)	greater emphasis on the knowledge and responsibility of the person giving the Disclosure Statement
E3.11(b)	providing the court with "an explicit account of the issues as to retrieval and disclosure of electronic documents"

None of these appear actually to extend the CPR powers, that is, each of them can be traced back to a general or specific power given in the CPR.

Commercial Court Long Trials Report and Recommendations

The Working Party led by Mr Justice Aikens produced this report in December 2007. Its recommendations are being used on a trial basis in the Commercial Court from February to November 2008.

It is all important, and its principles are applicable in any court in an appropriate case. The sections of particular interest are

Section E - Disclosure

Section L - Client Accountability and Responsibility

I have written about the Recommendations here.

Judicial Training

In October 2007, KPMG launched the results of a survey suggesting widespread dissatisfaction amongst practitioners with the CPR. Their introductory note is headed Lawyers call for clarity on e-disclosure - and training for Judges and Masters. The survey itself can be downloaded from that page.

At the same time, the Society for Computers & Law published my article Training for Judges in E-disclosure, describing what we are doing to address this alleged dissatisfaction.

E-Disclosure Conferences

The agendas for the big conferences show what the clients, lawyers and eDisclosure experts see as the big issues. See my List of Conferences 2008 which links to the programmes of most of them.

These involve either the problems faced by corporate users and what they are doing to tackle them, or e-Disclosure professionals sharing experiences.

Suppliers

What services and software solutions exist to help tackle e-Disclosure? Entry on the list below is not an endorsement or a recommendation, nor is anything to be inferred from omission. The purpose is merely to show what kinds of services exist. The software products vary in cost, sophistication and complexity.

There is much overlap, and increasingly so, between the range of services offered by some of these companies, and they do not necessarily fit neatly under the headings below.

Some, but by no means all, of these companies are sponsors of my e-Disclosure Information Project.

Location, collection and preservation

The main business of these companies is collecting data for litigation or regulatory purposes, often in a hurry, and delivering it in a form suitable for review, or they provide in-house collection processes for the same purposes.

FoxData - CCL-Forensics - Guidance Software

FoxData are the sponsors of my time on the judicial training project.

Filtering, deduplicating, finding relevant document classes

Heavyweight tools for hacking down the volumes and presenting the results, or for identifying candidates for a litigation hold. Their main strength is first-pass review.

Attenex - Autonomy Zantaz - Recommind

Review and analysis

Amongst the tools used in the UK are:

CaseLogistix - CaseMap - Concordance - Discovery Mining - Documatrix - Ringtail - Kroll InView - Summation

In-house data extraction tools

Software applications which firms might use themselves to extract data from mail systems and document folders.

e-Discovery Tools - OutIndex

Full-service litigation support providers

LDM - LDSI - Legal Inc - LexisNexis - Kroll - Millnet - Palmer Legal Technologies - Trilantic

Companies like this will handle every aspect of an eDisclosure task - scanning, processing, coding, printing - outsourcing where necessary. They will also put the resulting data into your chosen application and host it themselves or with others.

The big consulting firms such as Ernst & Young, KPMG, and PwC have divisions devoted to forensic and e-Disclosure services. There are many smaller providers of consultancy as well as scanning and related technology.

UK commentary

LiST, the Litigation Support Technology Group has developed drafts of a practice direction and data exchange protocol which can be found here. My own commentary on LiST's drafts begins here.

LiST's documents are technical and detailed. I believe that they, or at least the approach which they take, is the way forward.

My web site has a series of articles called E-Disclosure in Practice aimed at those new to e-Disclosure, and one on document retention.

My blog has articles on various aspects of the subject, including a series called Needles and Haystacks which analyses a case where the e-Disclosure aspects appear to reinforce prejudices against the subject.

Many of the other sites referred to here have thoughtful comment in addition to marketing material describing their services.

US eDiscovery sources

There is a mass of information about the US FRCP Amendments which came into force in December 2006.

The rules themselves are best read in the annotated version published on the Federal Judiciary US Courts web site.

I suggest that you start with an article by Reza Alexander of DLA Piper UK LLP called Where America leads... which can found linked from an article of mine called What can the CPR learn from the FRCP? The article serves as an index to those pages of the annotated FRCP Amendments which matter.

You might also find it helpful to see what help is available to US judges. The Federal Judicial Center publishes a useful little book called Managing Discovery of Electronic Information: A Pocket Guide for Judges.

The FRCP category of my blog includes pointers to US commentaries which caught my eye and which lead in turn to others. I point you to my own articles because they have been written for their relevance to potential developments here.

The US sources linked from my blog have links to more sources than anyone will want to pursue. I suggest that you use some of these references merely to catch the flavour of what is happening in the US.

FoxData kindly sponsor my time on this initiative
www.foxdata.co.uk

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