All posts tagged Disclosure

Back to Basics – Dealing with the Data

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.

Civil Justice Reforms Breakfast Seminar

Yesterday morning Kroll Ontrack hosted a breakfast seminar in Manchester in conjunction with the law firm Hill Dickinson LLP. We heard His Honour Judge Waksman QC (Manchester Mercantile Court) and His Honour Judge Davies (Manchester Technology and Construction Court) share their views on the impact of the cost management and disclosure aspects of the Jackson Reforms in their courts.

We discussed what impact the changes have had a month and a half into the period since implementation to compare experiences and to get an understanding of the types of orders judges are handing down.

Interestingly, the judges agreed that despite the menu of disclosure options now available to litigants, standard disclosure would still be the appropriate order in most cases. Rather than changing the type of disclosure order, Judge Davies said, the Court would take an active role specifying the extent of the search that should be carried out.   Judge Waksman stressed that the Disclosure Report was not intended to be a document that practitioners need to labour over, and a high level list of the classes of documents available will suffice.

Budgeting for standard disclosure on the Disclosure Report provides a bench mark upon which the approach to disclosure can be agreed by the parties and this is all that is required. Whilst there is a menu of disclosure options, there is no need to submit a menu of costs!

In relation to cost management, Judge Waksman said that the new rules do not represent a great watershed, pointing to the fact that the cost management pilot had helped to embed cultural change.

We discussed how there is real value in examining each party’s budget in order to be well prepared and ensure that the Case Management Conference is a meaningful exercise. Advance planning will pay dividends.

The court will not simply approve all directions that have been agreed by parties, but take an active role as cost management feeds into case management. Nevertheless, it is not intended that the examination of budgets will be a ‘gargantuan exercise’ nor a detailed assessment of costs. Judge Waksman expects that in his court these discussions will add an extra 10 minutes to the CMC, or 20 minutes if more complex and that in very many cases, the budget will be approved with few changes if any.

Kroll Ontrack led a discussion with panelists – Hudson Legal’s Tom Moore and the head of Hill Dickinson LLP’s litigation practice, Geraldine Ryan – to recommend the best ways to approach budgeting and disclosure in this environment.

The new rules place emphasis on early preparation and getting to grips with the likely challenges ahead. Working together it is possible to make logical decisions and apply the best technologies to evaluate risk, decide the optimum strategy and control costs.   As Judge Waksman pointed out in his closing comments there is no need for litigators to be afraid of the changes.

Daniel Kavan and Rob Jones would like to thank Judge Waksman and Judge Davies, Hill Dickinson LLP and our managed review partner Hudson Legal for helping us put together an enlightening seminar particularly relevant for Manchester litigators and their clients.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

Social Media: Not a Problem?

We think we understand social media, it’s simple, right? It’s the medium whereby we create, share and exchange information and ideas in virtual social groups. However, like many organisations, I’ve never fully understood its place in the complex areas of our lives. We constantly hear that the work/life or the public/private boundaries are blurred in today’s society and there’s no denying that social media has had its part to play. To bring this back into context, I wanted to explore the increasing importance of managing social media as evidence.

Evidence is typically found within lines of communication, so it is inevitable that we will begin to see more lawsuits and criminal proceedings focused on social networking. However, whether you’re looking to request or disclose social media content to judge its relevance in litigation, or analyse it as part of an investigation, there are potential roadblocks that are likely to get in the way.

More often than not disclosure orders include electronically stored information (ESI) within the remit of what is to be produced. Typically this includes email, office based documents, data stored on mobile devices and now we begin to see requests for data stored in the cloud and content generated via social media. So, other than the obvious challenge of having to locate the data, imagine the time and internal cost of collecting and reviewing all of your employees’ computers and mobile devices. Now imagine expanding that to your company’s social media websites and then to each individual employee!

This is not to say that social media content is difficult to access. For example, the High Court has ordered Facebook on a number of occasions to disclose details of its users to identify them to assist in defamation claims. But is social networking content deemed valuable? Most give little thought to the consequences of their posts or blogs, but this is to the wrongdoer’s detriment, as social media is not exempt from disclosure in civil or criminal proceedings and, like any evidence, can be the smoking gun needed to prosecute.

So, we can’t escape it, social media is here to stay, in work and our private lives but what advice can we give when having to handle it? Most importantly, get control. Set out clear polices and regulate where your data is; inform your employees that social media is part of YOUR data control. Make it clear from day one that social media is discloseable and constantly remind your employees that policies are in place to protect your data, and what they post on Facebook or Twitter might come back to haunt them.

About Graham Jackson

As a Legal Consultant at Kroll Ontrack, I promote our computer forensic and ediscovery services to both corporate companies and law firms. This is to support any form of their electronic evidence needs, whether that is advising our clients to help prepare in advance of an electronic incident occurring, a real time incident such as data theft, or advise on the best course of action in dealing with post incident response to better protect against future occurrence.