eDisclosure is the process of identifying, preserving, collecting, filtering, reviewing and disclosing electronically stored information (ESI). This includes information stored on personal computers, iPads/mobile devices/PDAs, mobile phones and USB memory sticks, as well as email, documents and calendar files.
Simon Tolson explains how the use of technology may assist in reducing the cost of litigation by expediting and improving the process of disclosure of documents.1
The sheer volume of ESI can be problematic, and Lord Justice Jackson captured this predicament in a speech in November 2011 while giving the seventh lecture in the programme for implementation of his reforms as recommended in his Civil Litigation Costs Review Final Report:2
"The problem: Even in medium sized actions where all the documents are in paper form, disclosure can be a major exercise which generates disproportionate costs. It can also result in a formidable bundle, most of which is never looked at during the trial. In larger actions where the relevant documents are electronic, the problem is multiplied many times over."
For the disclosing party, the steps involved in a possible eDisclosure exercise include: considering how to preserve and use documents; a scoping exercise to assess which documents are involved; considering what to disclose; whether special software is required; identifying software/vendors; and discussion with the other party.
The first step in eDisclosure terms is "harvesting" the documents; namely identifying and collecting the data. This can be a mammoth task. Around 18 years ago, increasing numbers of businesses and individuals went over to creating, exchanging and storing their documentation and communicating with each other entirely by electronic means. The end product is that a colossal volume of information is now created, exchanged and stored only electronically. Email communication, documents, spreadsheets, programs, modelling (whether financial, engineering (BIM) or risk management), accounting, QA, drawing registers, and ever-increasing other forms of ESI now form the bulk of the documentation held by companies, other enterprises and individuals who become involved in litigation and arbitration.
Electronic disclosure in civil cases was introduced by the practice direction to the Civil Procedure Rules (CPR 31 – Disclosure and Inspection of documents) in October 2010. From then on, in any instance where documents relevant to a case are stored electronically, the parties have to consider and discuss how disclosure should be carried out at an early stage, and all relevant documents must be preserved from the time when court action was first contemplated.
So, at the starting grid of eDisclosure, where do you find "the papers" – the ESI – to harvest? There are numerous other sources of documents to consider when deciding where to look for documents. It should be borne in mind that some custodians (senior employees, engineers, planners, project managers, architects and decision makers) are more important than others and their communications and inboxes may require much closer scrutiny.
The original file structure should wherever possible be retained when electronic material is being investigated or collated and there must be an understanding of what document management systems were in use at the time, how they were updated, and where they exist now (company acquisitions and mergers complicate matters). It will not suffice merely to look at paper files or email account inboxes. It is also vitally important to investigate data migration, and make proactive enquiry of the IT department, professional staff and HR department. Consider also the data retention policy, and for example what happened to any laptops that are no longer used.
It is important that diverse material is considered and if one party can demonstrate that the material is or is likely to be of relevance on a certain platform to the issues in question in the action they should take steps to ensure it is collected.
Paragraph 4.1 of the TeCSA eDisclosure protocol requires each party to keep a detailed record of each process applied to its documentation from identification and collection onwards so as to provide a suitable audit trail for what process has been applied to each category of document, including a detailed record of the methodology and logic used to remove any documents from the collection.
Appendix 1 to the TeCSA eDisclosure protocol provides this helpful reference point for locating and identifying the nature of documents and key custodians:
- [Identify locations of categories of documents and key custodians of documents]
- [Identify any categories of documents which are located outside the jurisdiction of England and Wales]
- [Identify any categories of documents which are not reasonably accessible]
- [Identify any categories of documents which may no longer exist][Identify any categories of documents in native format which were created using relatively unusual software (e.g. Primavera, Micro station, Microsoft Projects, AutoCAD, the BIM software or any bespoke software)]
- [Identify any documents that cannot be collected in native format]
- [Identify any documents/locations/custodians which have not been collected but which are subject to further investigation] [emphasis added]
Limiting the flood
Initial harvesting of documents by reference to users, date ranges and keywords is a common approach and filters can be used to (i) exclude irrelevant documents or (ii) help identify disclosable documentation within the wider pool of documentation extracted. Keyword searches can help to reduce the disclosure to manageable amounts for human review where that is appropriate.
The purpose of keywords in the field of eDisclosure is to assist the document review; first, by narrowing down the dataset to be reviewed, and second, to find the specific piece of information sought. There is nothing "wrong" with keyword searches as such. Used as a tool to locate relevant material, they are readily comprehensible, transparent and efficient to implement. However, they are a rather blunt tool. If the keyword list is focused too narrowly, highly relevant, disclosable documents will fall through the net; if the list is drawn too widely, then searches will pick up acres of irrelevant material.
The loss of native structures
One of the other things that must be understood is that the eyes may see but the brain may not deduce what it should because of the way eDisclosure presents the data from the harvest to a reviewer.
Documents rarely exist in a vacuum on their own; they almost always belong to some sort of group. Group membership may be intrinsic to the documents themselves (e.g. a set of board minutes; a chain of email correspondence; weekly progress reports); alternatively, it may exist only in the context in which the documents are saved (e.g. a central archive of project documentation). In either case, the context can give the document meaning; conversely, in the absence of the context, it can be difficult or even impossible to understand the significance of an individual document. A receiving party reviewing the other side's disclosure will almost certainly want to review board minutes as a series, email correspondence in chains, and project documents as a set. Unfortunately, with electronic disclosure, this is often impractical and sometimes impossible, so if possible try and agree a protocol where meeting minutes classes are grouped.
However, if the reviewer is looking for a specific "needle in a haystack" among the dataset, the keywords used should be very specific and narrow, and can include, for example, the custodian's name, specific date and the subject matter of an email. This technique can be employed in the later stages of the investigation, when the document set has already been narrowed down.
A disclosing party (and sometimes a receiving party) will often wish to limit for relevancy reasons the custodians (the keepers of pertinent electronic documents) whose ESI is disclosed to the main players who received 95% of the relevant traffic. There are certain people whose inboxes and outboxes are more likely to contain significant emails than others. Drawing up a list of "Super Custodians" (i.e. the top 10–12 people) on a major project will invariably capture all the important traffic, even where 200 people were on the job. It is good practice to have sketched out a preliminary list of custodians well before the first Case Management Conference.
1. This is an edited version of an article which was first published in the Chartered Institution of Civil Engineering Surveyors (ICES) Construction Law Review 2015.
2. January 2010.
This article is taken from Fenwick Elliott's 2015/2016 Annual Review. TO read further articles go to www.fenwickelliott.com/research-insight/annual-review/2015
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.