Disproportionately large e-disclosure costs can be remedied with early and diligent data retrieval and categorisation methods, say Kevin Butteril and Mike Brown

The costs of disclosure have rocketed in recent years with the shift from paper to electronic documents. The growth of email, together with the increased use of portable digital devices, has combined to produce an explosion in the volume of documents created by businesses, and the courts have now begun to take notice. Lord Justice Jackson has identified the disclosure process as one of the main causes of excessive litigation costs, and a string of recent judgments have penalised litigants for failing to properly manage their disclosure exercises.

One common cause of disproportionate disclosure costs is the failure to identify, catalogue and protect the documents and electronic data that needs to be reviewed. Time spent planning at the outset of litigation pays dividends later on.

Securing the data

One problem is that clients often are not aware of the need to suspend destruction protocol and isolate and preserve the data. This should be done as soon as a litigation or dispute is known. Securing the data should be done at an early stage to ensure that data is not deleted or overwritten, destroying the evidence.

This means cataloguing all the different data sources including laptops, mobiles, personal digital assistants (PDAs) and social networking sites used by staff and then taking practical steps to seal off the ones containing data that is likely to need harvesting so that evidence is not contaminated. Moving data indiscriminately can damage its admissibility by altering the metadata – the record of when a document was amended and by whom – which is vitally important in some cases.

This is not an expensive process but is a matter of having the correct personnel, such as IT professionals, meet for a few hours, review their data policies and protocol and identify the location of the data. By collecting this information, when proceeding to disclosure you will start with an accurate road map and can be confident that the data's integrity has been preserved.

It can seem like a costly affair to start looking at all these different areas of activity so early in the process, especially if there's a good chance that the case may settle quickly. But unless time is spent planning at an early stage, the repetition that it will create further down the line can greatly increase the cost. By going through the process of identifying, cataloguing and preserving the information early on, it is possible to keep costs to a minimum and still yield very effective results. The proportion of costs that are attributable to the planning stage relative to the total of the entire review process is very small, so there is reason to put an effective plan in place at this point in the process.

A matter of policy

Effective planning at the outset will depend on the client's document retention policy. If the client has an effective policy in place, it should provide good information on how the data is being held, who is responsible for it and what audit trails exist to prove its admissibility and integrity.

It has become very important in recent years to work with opponents to discuss what document types are likely to be relevant. Failing to do so can lead to either too many documents being disclosed, massively adding to costs, or to claims that relevant documents were omitted.

Clearly, identifying and cataloguing the relevant data sets will help enormously in this respect. Unfortunately, at this time, even if one party has followed this practice, there is no obligation on their opponents to do the same thing, which can be very frustrating. The protocol are all voluntary, and the only way forward is to apply to the judge or arbitrator for a ruling that each party carry out the same practices.

Judges are getting better at understanding these issues and there have been several judgments which have sent the message to law firms that they must polish their act and play fair. Nevertheless, lawyers are often still reluctant to seek a ruling on these matters. This is where technology comes in – it can strip out the irrelevant data from documents disclosed by the other side in order to keep the cost of review down.

Minimising costs

Minimising the cost of the review applies equally to a client's own documents. Even when everything has been done correctly at the planning stage, if you have inefficient or ineffectual processing and review stages, then the value of the accurate collection process goes out the window.

The biggest expenditure in an e-disclosure exercise is the legal review time. Reviewing irrelevant documents is a significant cost, and what Jackson's and other recent judgments show is that it isn't necessary to review every single document. Recent technology solutions can allow providers to work with the legal team to create an intelligent review strategy that can include automatic prioritisation of documents, so the review time is spent on the most important documents and the irrelevant documents are shunted to the back of the queue without much input from the legal team.

For this to work most efficiently, however, the e-disclosure provider needs input from litigation support teams to ensure that the collection phase is managed correctly and that all of the data sent for harvesting and review is catalogued. The quality and accuracy of the data and the review methodology will increasingly be at the forefront of judges' minds when they assess the cost and fairness of a disclosure exercise.

Kevin Butterill is litigation support manager at Clyde & Co and Mike Brown is international sales director at Epiq Systems.