Back to Basics – Proper Planning

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?
    • In Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC) Coulson J held that a further search should be carried out by “somebody with expertise in that field” due to the original search carried out by the Managing Director being inadequate.
• 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.