Back to Basics – Dealing with the Data

by Duncan Morley on November 18, 2013 in Best Practice & Top Tips with No comments
Back to Basics - Data

In my previous post I looked at the planning that is needed prior to any potential edisclosure exercise to gain an understanding of what may be required to gather the data.  Once the data has been collected, there are still many questions that need to be asked and answered to enable you to determine your budget and plan your review.  This post will consider some of the steps that can be taken to keep control of costs and plan your review of the documents.

For example, let’s imagine you have collected 30 gigabytes (GB) of data from 10 custodians, with a mixture of emails and documents.  What does that mean in terms of the number of documents that will need to be reviewed by lawyers?  Typically the volume of data or the number of GB is used to estimate the number of documents based on industry averages. The first thing to consider is data expansion, particularly if emails have been collected as .pst files.  A .pst file is basically a storage file associated with Microsoft Outlook emails.  Emails are compressed into a .pst file so they take up less space, but when the data is processed so that it can be loaded into a document review tool, the emails decompress to their original size, often resulting in a higher GB count.  We have seen .pst files expand more than 4 times during processing.  However, for this example, let’s say the total volume of data increases to 50GB.  Depending on the nature of the documents, there could be 5,000 – 10,000 documents per GB, resulting in 250,000 – 500,000 documents.  Using our document review platform, Ontrack Inview, we would expect reviewers to read on average over 50 documents per hour, so you could be looking at 10,000 hours of review.  This may be great for your billings as a lawyer, but I suspect it is unlikely to match your budget, or the need for proportionality!

There are various steps that you can take to reduce the number of documents that end up in your document review set.  Filtering the data generally involves applying keyword searches.  You can also filter the data by custodian or specific date ranges, and/or any other document properties which are available and removing irrelevant file types such as system files.  Your keyword list needs to be carefully thought out though, as keywords that are too generic will have minimal effect, and too few or too specific keywords could risk relevant documents not passing through the filter and being excluded from the document review set.  You also need to bear in mind that key word filtering may be ineffective with spreadsheets, pictures and drawings.  It can be helpful to test the effectiveness of your key words on a subset of the data, and we can certainly assist in that process.  If you plan to use predictive coding, where the document review software learns from human reviewers and automatically codes the documents as relevant, there is a suggestion that no keyword filtering should be applied, but that discussion is for another day.

In a litigation matter, the scope of the filtering should be agreed by the parties. Should the parties disagree, the court can make an order before disclosure starts.  In Digicel (St. Lucia) Limited and others v Cable & Wireless Plc and others [2008] EWHC 2522 (Ch), the court was critical of the parties’ solicitors deciding the search terms without consulting each other:

“[The Defendants] did not discuss the issues that might arise regarding searches for electronic documents and they used key word searches which they had not agreed in advance or attempted to agree in advance with the Claimants.  The result is that the unilateral decisions made by the Defendants’ solicitors are now under challenge and need to be scrutinised by the Court. If the Court takes the view that the Defendants’ solicitors’ key word searches were inadequate when they were first carried out and that a wider search should have been carried out, the Defendants’ solicitors’ unilateral action has exposed the Defendants to the risk that the Court may require the exercise of searching to be done a second time, with the overall cost of two searches being significantly higher than the cost of a wider search carried out on the first occasion.”

A further reduction of the data can be achieved by reducing the number of duplicate documents.  De-duplication can be applied, either to each individual custodian’s data, or across all the data to remove duplicate documents.  In some cases it will be sufficient to keep only one copy of key documents in the review database and remove all other copies, but in other cases such as fraud matter, it will be important to keep the copies to show who had knowledge of what.

If you have key custodians, you should consider processing their data in order of priority.  That way your highest priority custodian’s data will de-duplicate first with the least de-duplication, the next custodian’s data will be de-duplicated against the first custodian’s data, and so on, ideally resulting in your lowest priority custodian having the least data.  You should be aware though that not all duplicates are removed during this process; for instance, where the same document is attached to different emails, it will not be removed to allow you to review the attachment in the context of the email.

Making mistakes with filtering and de-duplication can result in potentially costly consequences, perhaps best highlighted in West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC).   In this case documents were not collected properly and some were missing.  Additionally, there were problems experienced with the quality of OCR, de-duplication, inconsistent redactions and the out-sourced review.   The Judge readily accepted that disclosure in complex international construction projects is difficult, but he was persuaded that errors were made and the claimant’s disclosure did cause additional problems which wasted time and costs.  He ordered the claimant to pay the wasted costs caused by the de-duplication failings and the inconsistent redactions and the wasted costs of a disrupted and prolonged disclosure exercise.  Working closely with your edisclosure partner as early as possible, can ensure that all the steps you have taken to reduce the data are defensible.

Filtering and de-duplication planned well can have a dramatic effect on the number of documents that need to be reviewed, which in turn impacts on your budget.  We frequently see the volume of data reduced by 40 – 60% through filtering and de-duplication.  To put this in perspective, if we return to our original example, this would result in 250,000 – 500,000 documents being reduced to 100,000 – 200,000.  With tight budgets, and frequently tight deadlines, spending time determining the most appropriate way to reduce your data will be time well spent.

E-Discovery and E-Investigations Forum 2013

by Luke Aaron on November 8, 2013 in Pieces of Interest with No comments

Visits to countless hotels with their endless Las-Vegan style psychedelic carpets, exchanging a metric ton of business cards with sales folk in  shiny suits, shinier badges and yet shinier teeth and a veritable bounty of canapés and foods on sticks that so epically fail to satiate one’s hunger. All of the above can only mean one thing…conference season is well and truly upon us.

 

Rob and Luke at AKJ

That time of year where the legal technology industry crams in a quarter’s worth of conferences in to a 3 week period, so that everyone can feel slightly more comfortable with the fact that everyone will be mentally checked out from mid-November until we’re safely into 2014 and our New Year’s resolution requires us to work harder.

But the season isn’t all pretentious canapés and teeth whitening, it can’t all be fun and games! Occasionally, as a subject matter “expert” in one’s field, you are asked to share your knowledge with a room full of strangers; and that is precisely what I was asked to do when chairing a panel discussion entitled “Protecting data in business and in investigations”. I was joined by Martin Pratt, Head of the Employment Group at Gordon Dadds Solicitors in Mayfair and E.J Hilbert, Head of Cyber Security at Kroll Advisory Solutions and regular creator of  audible gasps as he tells people of his 8 years spent as an FBI secret agent countering international hacking (no prism jokes please).

 

Luke at AKJ

The discussion was incredibly well received and the feedback has been overwhelmingly positive. Huge thanks for this must go to the two gentlemen mentioned above, whom I, in a Dimblebyesque way, merely pointed in what I hoped to be an interesting direction and let their vast experience and expertise come across to the audience.  I know from feedback, that some even took some helpful hints back to office with them that day. I can hear you all thinking “Luke, helpful takeaways from a conference seminar? Such a thing does not exist, I just go for the chicken ballotine with quince jelly.”

At a high level, the points are basic. For external threats, it’s all about educating staff. The identity of external threats may have shifted, but their methods continue to be repeated ad nauseam.  As long as people are still using their dog’s name or favourite football team as their password, hackers will always be able to crack it. As long as people follow links, even those that appear to come from a trusted source, their ‘email to click’ ratio will remain high and this method remains viable. So change your obvious password to a phrase instead. You won’t forget “tobeornottobe” in a hurry, but it’s infinitely harder to crack. Instead of clicking that link you’ve been sent, Google the name, find the original source and then decide whether to trust that email or not.

For internal threats the messaging is more important than ever: control who can access data. Categorise it so that staff have access to data required for their job but nothing else and ensure that your employment contracts are fit for the modern workplace, and regularly updated.

We have been asked to present further on this topic of data theft/loss in business at both the E-Crime forum in Amsterdam on the 28th November 2013 and as the final part of our current Webinar series  which is set to broadcast in early December. They promise to be excellent discussions and if at all possible I strongly urge people to register and listen in.

Until then, look after yourself and each other.

Please take a seat Mr. Snowden

by Orion Wisness on November 4, 2013 in Pieces of Interest with No comments
Please take a seat Mr. Snowden

As we begin to set the table for the ediscovery and edisclosure predictions of 2014 we often reflect on those invited in past years:  an ever expanding cloud, big data, technology assisted review, social media collection and others. This year however, is unusual in that we have an unanticipated guest who reminds us that while forecasting trends is an important process, we are never prepared for everything.

Please take a seat Mr. Snowden.

It is unclear exactly what effects Mr Snowden’s revelations will have in the long run, but already clients are becoming more protective regarding dross-border data transfers and the European Union is questioning safe harbour certification.

Global networks and the explosion of cloud storage has continually raised security concerns but they are rarely highlighted on such a massive scale. This is causing clients to rethink where data is stored, how it is collected, and where it is processed, as well as how to manage review teams that may be scattered across the globe.

A year ago the idea of shipping a fully-formed processing and review platform, independent storage, and an entire legal review team to a client’s facility would have been ludicrous, both from a logistical and financial standpoint. Yet since Spring, when some of the major revelations from Snowden’s materials surfaced, I have discussed the possibility of providing exactly this with three different clients.

Continually addressing clients’ concerns is our business, and while it is premature and reactionary to say good-bye to the cloud, an increase in local data centres and on premise solutions may end up being one of the biggest trends of the coming years.

Talking Science

by Daniel Kavan on October 21, 2013 in Best Practice & Top Tips with No comments
Art to Science

It is a busy week for me! Right now I am in Prague attending the LawTech Europe Congress. Later this week, I will be back in London speaking at the e-Discovery and e-Investigations Forum.  Just like in the fields of law and science, in Legal Technologies it is important to stay up to date on the latest technologies, techniques, best practices and rules.

In fact, the field of electronic evidence and legal technology can, and should, be treated as a science. Kroll Ontrack is working hard on transforming the ediscovery process from an art to a science, and this will be the subject of my presentation at the e-Discovery and e-Investigations Forum.

I’m conscious that this is a blog dedicated to European readers, and most European jurisdictions don’t have “discovery” as a part of their legal system. So I would like to clarify that I’m using the word “ediscovery” as a broad term meaning the techniques and technologies used manage electronic evidence in a legal matter or investigation, whether it’s a disclosure exercise in the English courts, a response to a regulator or a pro-active compliance audit.

So how do we take transform an organisation’s ediscovery process into a science? There are three key areas:

  • First, organizations should be attempting to optimize their entire ediscovery portfolio – not each individual ediscovery project.
  • Second, rather than directing projects through emails and phone calls, apply a more structured method of collaboration, one that is always available for quality checking and reuse.
  • And third, instead of viewing ediscovery as a series of linear steps where data is transferred from tool to tool, think of it as an integrated information continuum where the state of the data simply changes depending on where you are in the process.

This approach, combined with taking a scientific and mathematical methodology to using the latest technologies such predictive coding (see Costa Kypre’s post last month) will result in a repeatable, defensible, cost-effective and efficient solution to managing electronic evidence in all types of ediscovery situations.

For all the latest new on this transformation, search Twitter for #ArtToScience.

Data War: Annual French general counsels’ meeting

by Thomas Sely on October 11, 2013 in Pieces of Interest with No comments
Data War

Last Friday, Kroll Ontrack sponsored the Annual General Counsel meeting hosted by the Development Institute International in Paris. I was asked to give a 15 minute talk about data control in e-discovery, dawn raids and internal investigation. I have to say that I had no idea what level of interest the forty-something general counsel and the few external lawyers in the room would show in this topic.

As everyone knows, civil law practitioners – particularly those in France – don’t traditionally pay too much attention to ediscovery and legal technologies coming from common law countries.  To illustrate this, one of the speakers who opened the session – a special legal advisor to the French Minister for  Industry Arnaud Montebourg – explained how France and Europe completely lost the technological shift in the 2000’s by letting  US giants (such as Google and Yahoo, e) take control of European citizens’ data and earn profit from that. As a consequence, the French government is now thinking about solutions to help Europeans regain better control of their personal data and its €315 billion value, according to a research conducted by the Boston Consulting Group in 2011.

Handling electronic data is also crucial in legal and regulatory matters. This is what my talk focused on.  Taking the right steps to ensure data is handled properly is a real challenge for French and European organizations dealing with a US discovery requests or a regulatory investigation. The European data protection directive, local data protection and labour laws and blocking statutes form a complex legal framework in situations where companies and lawyers need to collect, process, review and produce data. Alongside legal measures which have to be taken, there are technological tools and techniques that can be leveraged at each stage in a project to ensure data is kept safe and laws are complied with..

Finally, I was pleasantly surprised to see good feedback and some interesting questions from the audience. Hearing from French general counsel who have experience in ediscovery was very interesting and made me become more aware of their challenges: a French company which is not often involved ia US litigation can’t control the discovery process and usually only rely on its US law firm to take the right decisions.  Does this foreign law firm really understand the local challenges and does it have a local team with some ediscovery experience? Anyway, French companies are definitely looking for more local support to be help them take control of their data and of the whole discovery process. This will primarily mean having their data managed at a local level first instead of sending y all the documents requested directly to their US lawyers. A global ediscovery vendor with local teams and local processing facilities can therefore be seen as an indispensable partner to achieve that.

Follow on Actions in Europe: The New Directive

by James Farnell on October 9, 2013 in Pieces of Interest with No comments

On Wednesday 25th September, Kroll Ontrack had its annual Brussels event at the Steigenberger Grandhotel which this year focussed on the topic of civil damages claims for anti-competitive behaviour, and the European Commission’s draft proposal on this subject.  The Directive was always going to attract significant attention given the presence of one of the Commission’s more controversial proposals to introduce an obligation of ‘disclosure’ on parties involved in Follow on Actions.  This is a step which in many of Europe’s jurisdictions is a completely novel concept and in some jurisdictions may even be considered as an unwelcome one…

As one of the European companies most active in Follow on Actions on the Claimant side, Deutsche Bahn’s Christopher Rother, Head of Competition, sat alongside Associate Dr Alex Petrasincu of Cleary Gottlieb Steen & Hamilton LLP, himself heavily involved in defending companies against such actions.  Dr Hanz Zenger, economist at Charles River Associates brought his significant experience of economic insights having previously worked at the Commission in the Chief Economists office, and Daniel Kavan, Head of Consulting at Kroll Ontrack, was able to shed some light on the practical and technical understanding involved in assimilating and collecting electronic evidence in such actions.

Needless to say the discussion focused mainly on the more controversial aspects of the Directive which included the introduction of an obligation of disclosure, but also a discussion around the ‘passing on defence’, the way the Directive deals with issues of proof and quantification of harm, and finally access to documents and technological solutions .  Mr Rother was also able to give an interesting insight into the activity of his department as a whole, and how Deutsche Bahn organises itself to conduct actions on the scale that it does.  To listen to the discussion in full, please view the video below (which includes Dr Petrasincu’s slides introducing the key elements of the Draft Directive):

The difficulties surrounding the adoption of the Directive in its current form were highlighted by the arguments advanced by both Mr Rother and Dr Petrasincu.  Whilst the disclosure obligations introduced in the Directive were intended to address the asymmetry of information that exists for claimants wishing to bring a civil action against a defendant found to have engaged in anti-competitive practices, an obligation of disclosure is one that is alien to most EU member states.  Due to the drafting of Article 5, which deals with the definition of documents to be disclosed by claimants (requires that the claimant has presented “reasonably available facts and evidence showing plausible grounds for suspecting he has suffered harm caused by the defendant’s infringement of competition law) Dr Petrasincu suggested that there was a considerable risk that this section could attract fishing expeditions, the cost of which would have to be met by defendants.  Given the additional burdens these issues could cause defendants, Dr Petrasincu submitted that there was a real risk the Directive in its current form might actually serve as a deterrent to self-reporting anti-competitive behaviour to the Competition Authorities.    Indeed, current fines levied by the Commission and National Competition Authorities seem to be high enough without many of the same documents then being made available to future claimants.  As Dr Zenger stated, from the economic perspective there seems to be conflict here between deterrence and compensation.  As it stands, the leniency procedure is needed for anti-competitive practices to be brought to light, but a defendant certainly won’t be interested in “digging his own grave”.

There is no immediate effect flowing from the proposed Directive as it won’t be adopted until at least 2015.  The Council of Ministers first has to adopt the Directive, and as Dr Petrasincu stated it is unlikely to be adopted in its current form.  Once this is agreed, Member States will then have another two years to implement it.  We will be watching developments with interest.

Autumn Ediscovery News: New Solutions and Education for Companies

by Tracey Stretton on October 4, 2013 in Pieces of Interest with No comments
New Solutions and Education for Companies

We are very excited this week to announce the launch of in-country ediscovery processing capabilities in Germany and France as well as Ontrack® Onsite™, a self-contained ediscovery solution that can be deployed onsite to any country.  Many of our European clients have grappled for a long time with data protection laws that restrict data transfers in cross-border cases and increase the complexity, cost and risk associated with ediscovery. We have also seen data security and the protection of intellectual property become more important to companies as cyber attacks, data breaches and surveillance become a day to day reality.  As our President and CEO, Dean Hager notes in our press release issued on 1 October, we are addressing these needs head on with flexible solutions that allow data to be processed either in country in Germany and France, in addition to already established data centre hubs in the U.S., U.K. or Japan, or behind a company’s own firewall when data cannot leave its premises.  If you would like further information about these new capabilities you can read our press release or give us a call.

Coinciding with the announcement we are also launching a complimentary webinar programme in EMEA in which we will be examining the management of electronically stored evidence from the point of view of corporate counsel in Europe and some of key issues which arise.

In our first webinar on 8 October on Data Control: Ediscovery Solutions for European Companies we will look at how to manage company data in litigation, regulatory inquiries and internal investigations when security, confidentiality and compliance with data protection laws are of paramount importance.   If you would like further information about the event please click here and if you would like to register please email us at events@krollontrack.co.uk.

We have on our panel:

Christian Kuss, Associate, IT, Copyright and Data Protection Law, Luther, Cologne

Mark Surguy, Partner, Fraud and Investigations Group, Eversheds, Birmingham

Thomas Sely, Electronic Evidence Consultant, Kroll Ontrack, Paris

Andrew Szczech, Director for EMEA, Kroll Ontrack, London (Moderator)

The panel will be discussing the reasons clients choose to process data in country or onsite, whether that be due to data protection and privacy laws or concern about data security.  We will also be looking into solutions such as behind the firewall ediscovery solutions, in country solutions and other legal mechanisms for handling data protection restrictions on cross-border data transfers and client concerns about confidentiality.  This intended to be a practical session and our speakers will share experiences in an area where the law is often grey and client’s appetite for risk varies.

In our next two webinars we will be hosting discussions on the following:

22 October – Ediscovery – What In-house Counsel Need to Know – what companies need to do to ensure that costs, risks and response times are reduced when responding to formal demands on company information such as discovery requests in litigation, compliance checks, due diligence or regulatory requests.

5 November – The Changing Face of Data Theft – what new risks companies face due to advances in technology such as the use of mobile devices, cloud storage and social media by employees and how to respond forensically

Predictive Coding – How it’s Bringing Innovation to Legal Practice

by Costa Kypre on September 17, 2013 in Pieces of Interest with No comments

Kroll Ontrack was proud to host a breakfast seminar last week on Predictive Coding and how it’s bringing innovation to legal practice.

Over 90 legal professionals from law firms and corporations across the UK gathered at the early hour of 08:00 for a light (and far too healthy!) breakfast and to hear our very special guest speakers: Ralph Losey, a partner in the Orlando office of Jackson Lewis LLP and serving as the firm’s National e-Discovery Counsel, who had flown in especially from Florida for the event and Neil Mirchandani, a partner at Hogan Lovells in London specialising in financial services disputes.

Daniel Kavan of Kroll Ontrack helped moderate the session for what turned out to be a very interactive debate with members of the audience.

We found that there are a lot of terms used for describing predictive coding technology, such as “technology assisted review,” “computer-assisted review,” “computer-aided review,” and “content based advanced analytics.” Ralph helpfully pointed us to a very useful definition of predictive coding by The Grossman-Cormack Glossary of Technology Assisted Review, written by Maura R. Grossman and Gordon V. Cormack:

An industry-specific term generally used to describe a Technology-Assisted Review process involving the use of a Machine Learning Algorithm to distinguish Relevant from Non-Relevant Documents, based on Subject Matter Expert(s)’ Coding of a Training Set of Documents. See Supervised Learning and Active Learning.

Ralph Losey, who is seen as leading global expert on predictive coding, opened the session by providing a very helpful summary of what predictive coding is and how he has seen it applied. Neil Mirchandani was then on hand to provide a UK perspective and outline his experiences of the use of the technology.

I have highlighted some of the key points that were raised:

  • We heard some interesting and surprising stats as to the consistency of a human review, for instance, studies undertaken have shown that one reviewer has a consistency of 77% when reviewing documents, this figure drops to 45% when there are two reviewers and plummets down to 30% when there are three or more reviewers. So perhaps a human review should not be seen as the gold standard for completing review exercises.
  • Predictive coding is not a substitute for a human review and should be seen as a supplement. Predictive coding is very reliant on the input of subject matter experts (SME) via the review of a sample set of documents to “train“ the system and for this to be an on-going and iterative process as the system evolves.
  • There were some lively debates as to whether the initial training should be completed by one SME or a few.
  • Predictive coding can be utilised as an invaluable quality assurance mechanism for a human review and even if predictive coding is used for tagging, any documents that are deemed to be relevant can still be reviewed by a human team.
  • A number of audience members had queries about whether it has been challenging to reach agreement with the other side if this this type of technology were to be used. The consensus from the panel seemed to say that that it would be difficult to try and “force” another party in litigation to deploy this technology, but it would be very unlikely (and difficult) that an opposing party could object to the technology being used.
  • The technology should not be viewed as exclusive to large and litigious cases – there were some great examples of the technology being deployed, and successful, in internal investigation and regulatory exercises and for cases consisting of say 40,000 documents.

There were many other very useful insights to come out of the workshop, but unfortunately there isn’t space to fully cover it on this blog. If this topic is of interest, you will certainly find Ralph Losey’s blog to be helpful, as it goes into full detail about his various studies.

Feel free to get in touch if you would like to have a chat about the application of this technology in more depth.

Follow On Actions in Europe: The New Directive

by Andrew Szczech on September 13, 2013 in Pieces of Interest with No comments
Brussels-Header

On the evening of 25 September we are hosting our annual networking event and panel discussion at the Steigenberger Grandhotel in Brussels for lawyers in both private practice and in-house at companies.

We have been running these annual events for 6 years now and it’s one of the dates in the calendar that I look forward to the most, both because of the liveliness of the debate that the sessions always generate and also because of its social nature. It’s always a great opportunity for us to catch up with old friends and to see the Brussels legal “network” in full swing!

This year, the panel discussion will focus on the European Commission’s recent proposed Directive for antitrust damages in civil actions which is very topical and in some respects controversial at the moment.  Those who have been following the developments will know that the Directive aims to remove obstacles to claimants seeking compensation for harm caused by antitrust infringements and recommends that mechanisms be introduced for collective actions in such cases.

I’m really pleased to be moderating the discussion again and to have such a fantastic panel. This year the panel comprises:

Mr. Christopher Rother, Head of Competition, Deutsche Bahn

Dr. Alex Petrasincu, Associate, Cleary Gottlieb Steen & Hamilton LLP

Dr. Hans Zenger, Senior Consultant, Charles River Associates

Daniel Kavan, Manager, Electronic Evidence Consultancy, Kroll Ontrack

During the course of the discussion we will be exploring the following topics:

What changes claimants can expect under the new proposed regime in terms of bringing a civil action for antitrust damages against a potential infringer.

  • The extent of document disclosure that is to be expected in such actions and how protection mechanisms proposed by the Directive for immunity or leniency applicants will work in practice to prevent the disclosure of self-incriminating documentation to potential claimants.
  • How the Directive and the Commission’s guidance on quantifying financial harm deals with the issues of compensation and quantification of harm in practice.
  • The mechanisms for collective action proposed under the Directive and the Commission’s recommendation on this subject.
  • How technology and technical expertise can help lawyers involved in civil antitrust actions to locate, manage and critically assess the available evidence at each stage of the case.

After the discussion there will be a networking event for those who wish to stay on.

If you would like further information about the event please click here and if you would like to register please email us at events@krollontrack.co.uk.

Back to Basics – Proper Planning

by Duncan Morley on September 6, 2013 in Best Practice & Top Tips with No comments
Big Data

A trawl of the various blogs and articles on eDisclosure finds plenty of articles on predictive coding, Technology Assisted Review (TAR), big data, analytics, the Jackson Reforms and cost budgeting.  Indeed, even our own blog to date has focused a great deal on these issues, as the tags on the left show.  All of these topics are essential reading for anyone involved in eDisclosure, but they all assume one thing – everyone knows the basics.  No doubt all of our readers are fully aware of the new rules regarding the submission of budgets.  Anyone who is following the Plebgate saga cannot fail to be aware of Andrew Mitchell’s predicament due to his budget not being submitted at least seven days ahead of the CMC.  As a consequence, the court said Mr Mitchell “would be limited to a budget consisting of the applicable court fees for his claim”.  The judge also went on to say:

“Budgeting is something which all solicitors by now ought to know is intended to be integral to the process from the start, and it ought not to be especially onerous to prepare a final budget for a CMC even at relatively short notice if proper planning has been done.”

From our perspective, the key words here are “proper planning”.  One of the most costly aspects of litigation is the actual review of the documents due to the hours that this can potentially take.  But if you are inexperienced at eDisclosure, or don’t know your megabytes from your gigabytes, or both, where do you start?  Hopefully here.

The first thing to think about when your client rings is where to find the information relevant to the case.  The answer to that question will lie with your clients, or if you work for a corporation, with key personnel in IT and management.  The Electronic Documents Questionnaire contained within the Schedule of Practice Direction 31B is a useful template (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31/pd_part31b#IDAK4UJC), but here are the key questions that will help us to help you:

  • How many individuals are potentially involved?
    • Individuals are referred to as custodians.
  • Where is the relevant data for these custodians stored?
    • Their data may be on multiple sources, e.g.:
      • Desktop computer
      • Laptop computer
      • External device
      • Smart phone
      • Server
      • Backup tapes
  • Is it necessary to collect all the data from all the sources to avoid the possibility of having to return, thus incurring additional costs?
  • How much data might there be?
    • This is very important as it will eventually help determine the number of potential documents for review.
    • The unit used for data in these circumstances is a Gigabyte (http://en.wikipedia.org/wiki/Gigabyte).
  • What type of data is there?
    • What type of email does your client use, e.g. Microsoft Outlook, Lotus Notes?
    • Any databases or proprietary software?
    • Any messaging data, e.g. Bloomberg Messaging?
    • Any audio data?
  • What languages are contained within the data?
    • Do you have reviewers with the necessary language skills?
    • Is machine translation, whereby your review platform carries out a basic translation, appropriate for your initial review?
  • Who should collect the data and how should it be collected?
    • Where is the data geographically?
    • Do you require an independent third party to collect the data in a defensibly sound manner?
  • What are the data privacy implications, if any?

Whilst these questions are not exhaustive, if you have thought about them, you will be in a position to start your conversation with your eDisclosure providers.  Ideally, relationships ought already to have been built up with technology experts as in most cases there will be little time to conduct a “beauty parade”.

We can help you collect the information you need.  Together we can then begin to plan how you are going to retrieve the data, how long that may take, and what the costs may be.  You will also need to start thinking about the actual data: what happens when it is processed before review, how can you reduce the volume of data to review, and what technology do you want to use to help you as it is likely that some sort of data filtering technology and review platform is going to be required.

These topics will be covered in the next Back to Basics post.

Next week, Rob Jones will be writing a blog post on what you need to know about Technology Assisted Review (TAR). You can see a preview below.

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