Getting expert search evidence in front of the court

Yet another important new UK case on electronic disclosure, Abela v Hammonds, reaches me whilst I am listening to a US webinar about searching. The theme of both is knowledge, understanding and expertise – and co-operation to arrive at a proportionate solution

Men famously do not multitask well, but there is too much going on in e-disclosure at the moment to do things in neat sequential steps. I found myself this morning listening to a US webinar on the courts’ requirements for searches for electronic evidence whilst simultaneously reading a new 70 page English judgment on the same topic. This article is not a deeply considered report of either of them, but the coincidence and commonality is worth capturing.

The webinar was the one presented by H5 which I trailed in my article Benchmarking E-Discovery Methods . The webinar itself can be found on H5’s web site.

The participants included US Magistrate Judge Paul Grimm whose Opinion in Victor Stanley v Creative Pipe was one of the most significant of 2008 on the subject of electronic disclosure (see my article Understanding transparent search for UK litigation for links to reports about Creative Pipe).

Discussion about this aspect of US litigation inevitably involves a vocabulary which tends to exclude those who are not part of it – more than one vocabulary, indeed, since both US proceedings and the technology each have terminology which baffles outsiders. This webinar has its share of such terminology, but I recommend it despite that, mainly for the message in it from Judge Grimm which is both transparently clear and universal across jurisdictions.

His central point (which is much the same as you get from reading Victor Stanley and, before that, from US Magistrate Judge Facciola’s Opinion in US v O’Keefe) is that electronic discovery is a technical subject which must necessarily involve the acquisition of expertise. That may be self-acquired or may involve the involvement of outside resources, and inevitably involves some expense. There is no other way, however, by which a lawyer can decide for himself, still less persuade opponents and the court, that the technology, and his or her use of the technology, has produced a result which, if not necessarily perfect, is transparent to everyone else involved and tends to the finding of a just result.

Properly applied, this approach should save downstream costs, a point well made by Lord Justice Jacob in Nichia Corporation v Argos (see The Court of Appeal on the scope of disclosure and the case report linked from it).

Judge Grimm talks of the need to co-operate with opponents as to the methodology proposed to be used and to bind them and the court into the decision-making process so that costs are not thrown away on an approach which can be challenged and perhaps rejected by the court. This, of course, is precisely the point of the recent UK case Digicel (St Lucia) v Cable & Wireless (see various articles), in which the Defendant was made to redo part of its disclosure because the keywords used were narrower than those demanded by the other side and, retrospectively, by the court.

Keywords and the challenges to them as a search method are the primary subject of the H5 webinar. You might like to listen as well to what Judge Grimm and Jason Baron have to say in the webinar about the defects of document-by-document human review. I suggest that, unlike me, you do not try and read a long English judgment at the same time.

That came about because my listening was interrupted by a message from Matthew Davis at Lovells. He thought I might be interested in the very recent judgment in Abela and others v Hammond Suddards and others, and he was right. The copy I have is undated, but the witness statements which are ordered to be made were to be served by yesterday, 17 December, so it is obviously very new. The order was made in the Chancery Division by Paul Girolami QC sitting as a Deputy High Court Judge.

I will read it properly before I comment in full, but a quick skim (aided by Matthew Davis’s helpful summary) shows the following elements:

  • A disagreement between the parties as to the scope of electronic disclosure on more than one front
  • An assertion by the defendant law firm that making searches of electronic material as the Claimants required would cost £150,000, and that the work and cost would be oppressive and disproportionate. As in Digicel (which, inevitably, was referred to), the court held that the size of the claim and the seriousness of the allegations justified “more than a nominal amount of time, effort and costs”. The court was “unimpressed by the vagueness” of the Defendants’ evidence and wanted information about its sources in terms which echo those in the forthcoming Technology Questionnaire, and defined what should be done to narrow the search.
  • An “invitation” to the parties “further to consider and discuss the position, with appropriate IT assistance on both sides, in order to identify, narrow and if possible resolve the issues”
  • The observation that one party’s willingness to pay the costs of part of disclosure in any event does not make disclosable documents which are not otherwise disclosable (echoes of Hands v Morrison Construction here – see Intimidation by Terabyte – scope of e-disclosure)
  • An order that an IT expert give a witness statement about a personal computer which was alleged to be non-functional, devoid of any documents and subsequently destroyed and that evidence should be produced as to searches for other computers or for portable media
  • An argument about separate listing of documents as against listing by file resolved, in this case, by an order for listing by file.

The commonality between what Judge Grimm says in the webinar and the orders made in Abela lies in ensuring that the court has enough information to make an appropriate and proportionate order, derived from the evidence of suitably skilled people, and from co-operation between the parties.

There is a specific echo in Abela of Judge Grimm’s point about laying out some expense in order to assess what the problem is and how best to tackle it. There is a thread between Digicel and Abdela in that both involved an assertion as to the difficulty and expense of extracting data from electronic sources which was not backed by adequate and credible evidence and not made out before the judge.

There are pointers in both the US and the UK towards a new climate of co-operation, enforced if necessary, and backed by suitable expert evidence. The key message, well articulated by Judge Grimm in the webinar and by the judge in Abela, is that this requirement, aimed as it is towards a proportionate decision, need not itself be disproportionate. Grimm makes it clear that the evidence about sources and searches does not have to be deeply technical, just enough to show the other side and the court what is the right course. The judge in Abela makes a similar assessment in reckoning that some outlay is justified to assess the position whilst suggesting how this might be contained by co-operative discussions and sensible parameters. That is proper case management as the rules require.

Abela added to Digicel spells the end of casual assertions as to the difficulty or otherwise of examining sources. It is the end, too, of an adversarial approach to disclosure which has done much to increase costs. By all means argue about the scope of disclosure but it must be an informed debate, informed, that is, by the same sort of knowledge and skill which the US rules specifically require and which Judge Grimm emphasises in the webinar.

Suddenly, the traffic in information about electronic disclosure is no longer all one-way. The three recent UK cases – Digicel, Hedrich and now Abela – have a significance which other jurisdictions want to hear about and learn from. That is important, but it is less important than their impact on UK litigation lawyers which they can now expect to be immediate and effective – and, for some, salutary.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Court Rules, Courts, CPR, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, FRCP, H5, Judges, Litigation, Litigation costs, Litigation Support. Bookmark the permalink.

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