Body of evidence

Electronic evidence is likely to dominate future litigation. John Okonkwo looks at a number factors to be considered when drawing up an efficient e-disclosure framework

There is a popular aphorism that a dyers hand is always stained by the elements he works with. Likewise, it seems that a solicitor's reputation for probity can easily be tainted by basic flaws in the handling of electronic disclosure. The recurring theme in most cases where solicitors have given inadequate e-disclosure is that the defaulting parties prepared poorly and made nominal efforts to agree e-disclosure parameters with the opposition. This unilateral approach contravenes the Civil Procedure Rules (CPR) and has been rejected by the courts. The recent spate of rulings on e-disclosure failures has been covered widely by various interest groups, each promoting parochial solutions. What is missing is a recursive framework for early discussions as required by the CPR.

The triage role of solicitors

The Practice Direction (PD) to Part 31 of the CPR requires parties to make an early, good faith attempt at specific line drawing on e-disclosure. The idea of having productive discussions on a technical subject may be daunting, but as Justice Morgan and US Federal Judge Facciola have pointed out, the ability to disclose electronic documents and to declare to the court that you have fully done so is within what is expected of a lawyer of ordinary competence. This duty, owed to the court and to the client, cannot be outsourced. At the minimum, solicitors need to know enough to be able to supervise the work of vendors and to explain the variables and methodologies that underpin key decisions.

A scalable framework

Since it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future litigation, there are mandatory legal and technical issues that parties should discuss early on. The following framework may provide useful guidance.

1. Agree a structure for discussions

The PD provides valuable guidelines for transparency and consistency between the parties. Simply set out your requirements, invite the opposition to do the same, and arrange a series of meetings to thrash out any differences. Parties must come prepared to discuss in detail the parameters of disclosable electronically stored information (ESI) and avoid overly broad requests. Getting expert guidance very early is invaluable to contain costs and court sanctions.

2. Know your sources and location of ESI

Having the right data available and proving its authenticity can be the difference between an early settlement and an expensive trial. Each party should be familiar with their enterprise data map and come prepared to speak openly and without technical distortion about their information management architecture and data policies, as well as a road map of how key players store information. Remember that social networking tools and portable media devices now hold huge amounts of data and are invaluable in establishing timelines, relationships and exceptions to hearsay rules.

3. Negotiate limits on preservation

The common law duty to preserve relevant ESI commences once litigation is reasonably foreseeable. Since the triggering events can, and often do, occur long before action is filed, you should help clients to implement an effective legal hold. You can then negotiate limits on preservation. Getting an aligned handle on the location and preservation of relevant ESI will enhance each party's ability to gather enough of the relevant facts, law and evidence in order to develop a litigation or settlement strategy.

4. Search terms and methodologies

The rules require parties to carry out a reasonable and proportionate search. The problems of volume, duplication and unstructured content underscores the lack of consistency between parties in relation to the level of searches carried out. Recent decisions make it clear that the courts expect solicitors to be conscientious in handling search issues. Thus, parties should perform due diligence in choosing a particular search methodology. They should agree a focused range of keywords and use date ranges or time slices to gauge accuracy. They should also explore more accurate concept search tools.

5. Cost sharing and cost shifting

The cost of e-disclosure can outweigh the value of the damages claimed. As the courts can contain costs by limiting the scope of e-disclosure, parties are better off reaching mutual agreement than waiting for unpredictable court directions. They can use negotiated thresholds to shift or share costs, and to overcome traditional chokepoints. To support meaningful negotiations, parties should conduct a basic univariate analysis of their ESI to see how each variable (e.g. keywords, conversion, etc.) will affect the cost picture, and if some variables can be tweaked to stay within a proportionate cost band.

6. Privileged and confidential material

It is inevitable that in the course of producing thousands of electronic files some confidential or privileged material might slip through. To avoid the risk that some courts might allow inadvertently produced privileged documents to be used in litigation, you should negotiate a claw-back agreement or obtain an undertaking which stipulates that inadvertent production of privileged documents will not waive an applicable privilege.

7. Form of production

The Litigation Support Technology Group (LiST) has produced a data exchange protocol to guide parties in this area. However, parties should pay particular attention to metadata disclosure which can be affected by the form of production.

8. Court directions

Parties should seek directions as soon as necessary. Ultimately, a meticulous e-disclosure order, based mostly on party agreement, can streamline the process and reduce costs.

John Okonkwo is a dual-qualified US attorney and UK solicitor (non-practising) at litigation consultancy Ducain Forbes.