Australia: Disclosure: tracking decisions triumph over proportionality in recent court decision

Last Updated: 7 November 2018
Article by Phillip Buglass

In a recent decision in the UK High Court, dealing with scope of collection and predictive coding, the Court confirmed the importance of a defensible and transparent process when it comes to data identification, data collection and disclosure review. The Court also highlighted the need to use senior reviewers when completing a predictive coding project.

In Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors [2018] EWHC 176 (TCC) (07 February 2018) the Defendants sought orders from the Court that:

  1. A list of 860,000 folders and file paths which had been identified by the Claimants be provided to the Defendants so that they could see whether there were any folders or file paths which had not yet been, but should be, searched.
  2. The Claimants undertake a manual review of the balance of 220,000 documents (out of a total of 450,000) which had been identified as potentially disclosable following the keyword search but which, other than a very limited sampling exercise, had not been further searched.

Facts

In outlining the approach to be taken, the Claimants' Electronic Documents Questionnaire (EDQ) provided that following keyword searches all responsive documents would be manually reviewed. The EDQ made no mention of Predictive Coding. The parties agreed on the keywords including a number of refinements which subsequently returned around 450,000 responsive documents.

Based on a review of these documents, the Claimant provided two sets of disclosure.

After this disclosure, it became apparent that the Claimant had used Computer Assisted Review (CAR) to prioritise the review workflow and that after reviewing the first 230,000 documents had made a decision not to review all of the remaining 220,000 documents. In explaining this decision, the Claimants' solicitors put forward the claim that having reviewed a 1% sample of the remaining documents, their CAR workflow predicted that only 0.38% of the remaining documents would be relevant. Based on these figures, they decided that it was disproportionate to review a further 220,000 documents to return a potential set of 836 further relevant documents.

This approach was never discussed, let alone agreed, with the Defendants.

Decision

In his decision, the Hon. Justice Coulson ruled that as the Claimant had outlined the approach taken in identifying the folders and file paths to be searched when providing the original disclosure list and that he was satisfied with the steps taken by the Claimant and that the approach was "sensible and proportionate". This decision can be seen to be partly based on evidence that a further review of the folders only revealed a potential two further file paths that may have produced potentially relevant material. Justice Coulson did, however, comment that it would have been preferable if the approach taken had been discussed with the Defendant prior to this point. We can perhaps assume that if more potentially relevant folders had been found, Mr Justice Coulson's decision may have been different.

In regard to the approach taken towards the predictive coding workflow however, Mr Justice Coulson took the stance that it was "unsatisfactory" that the Claimant had not done "what they said they would do in the EDQ", which was a manual review of all 450,000 documents and that they had at no time provided "relevant details as to how CAR was set up or how it operated".

Mr Justice Coulson also considered that further disclosure after the first 2 tranches raised concerns about the Claimants' disclosure process, calling the predicted 0.38% relevance projection provided by the Claimant into question. In looking at the percentage of documents disclosed from the 450,000 documents responsive to keyword searches, Mr Justice Coulson felt that this was, in his experience, "very modest". Taking into account the low percentage arrived at by the sampling exercise, which could not be said to be "reliable", Mr Justice Coulson ruled that it was "reasonable and proportionate" to order "some form of manual search" and that based on the facts of the case, he thought this would tend towards a "document-heavy trial".

Mr Justice Coulson raised further concerns with the number of people and the seniority of those involved in the CAR process, with the Claimant apparently using "perhaps" ten paralegals and four associates, stating that it was also "not apparent that there was any overseeing senior lawyer and certainly not one undertaking [a principal role]".

Given that "both the CAR exercise and the sampling exercise that it produced cannot be described as transparent and cannot be said to be independently verifiable" and the doubts cast upon the accuracy of the results provided by the Claimants, Mr Justice Coulson ruled that it was "reasonable and proportionate" to order "some form of manual search" and that the parties should agree on methodology to sample 25% of the remaining 220,000 documents.

Conclusion

Whilst proportionality is a recurring theme in the disclosure space, the decision in Triumph Controls also reinforces the importance of tracking decisions made at every stage of the disclosure process, from initial identification of potentially relevant data through to the final review of documents.

If you are in doubt as to what should be tracked, seeking advice from an expert would be the sensible first step to take.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions