Vince Neicho of Allen & Overy saw my post about the Singapore judgment of Senior Assistant Registrar Yeong Zee Kin in Deutsche Bank AG v Chang Tse Wen and others (see Singapore e-Discovery judgment shows international commonality and active management) and has input which is worth passing on. Vince says:
How refreshing that, shortly following the Senior Master’s judgment on Goodale, another judge, Yeong Zee Kin SAR in the High Court of Singapore, has grasped control in an e-disclosure dispute to instil some common sense into the process.
As per usual, Chris has reported the judgment admirably, pulling out the pertinent information for us. I write this commentary for two reasons:- the first is to rejoice that a judge has corroborated two points that I have been banging on about for years and, second, to seek, with respect, to suggest from a practical angle, that there was an alternative course open to the Yeong Zee Kin, that would have rendered the disclosure more useful in the long run and have resulted in significant cost savings.
First, (and to amplify Chris’s point), thank you judge for drawing everyone’s attention to the fact that it is not only the huge cases that benefit from proper treatment of ESI. As correctly pointed out in the judgment, almost every case will now include a sizeable element of ESI. This is a point acknowledged by Lord Justice Jackson in the e-disclosure section of the disclosure chapter of his final Costs Report. He said that e-disclosure is inevitable when dealing with cases where parties hold documents electronically. If ESI is treated properly, the benefits of searching, sorting and electronic production etc and their associated cost savings can be realised by parties to actions of all sizes.
I also welcome Yeong Zee Kin’s comments on assessing the need for forensic intervention on a case by case basis. My views differ slightly from those of Chris here. In my view, absent allegations of fraud and where challenges of the authenticity of documents are unlikely to be an issue, provided original documents are properly preserved, it is perhaps unlikely that forensic procedures are either necessary or appropriate. Having said that, it is of course necessary that the possible need for forensic collections is at least considered in every case.
Second, the judge suggested that one of the options to remedy a situation whereby a party and its law firm were on incompatible e-mail systems, was for the law firm to either purchase licences of its client’s system or to review the e-mails at the client’s offices or using a laptop loaded with the appropriate software. In my view, neither of these courses of action are the answer. All that would be possible within the e-mail system storing the e-mails (Lotus Notes in this case) would be to view the documents. There would be no facility for flagging, de-duplicating, or recording of work product against each of the documents. All that could be done to categorise documents would be to move them to any sub-folders that might be created to signify relevance or privilege etc. The problem with doing this would be that the e-mails would be another step removed from how they were stored originally, which will later impact inspection and any request for metadata.
The only answer to this, in my view, would be to arrange for the ESI to be “processed” – probably by an external service provider. Although “processing” introduces an up-front cost, this will undoubtedly be outweighed by future use of the processed material. The size of the document set will be reduced following de-duplication and the documents can be loaded into any litigation support or review database, where full analysis, search and sort functionality will be available going forward, thus facilitating the addition of work product to each document or set of documents and the ability to generate productions for disclosure, witness proofing bundles, instructions to experts and even trial bundles.
One final illustration that comes to mind having read this judgment is this: E-disclosure and its challenges and solutions are far more than just “IT”. Here the Defendant’s Solicitors’ IT Director had suggested a conversion process to allow the Plaintiff’s Solicitors to view their client’s e-mails. I am sure that, had the law firm instead turned to a litigation support professional (in-house or external consultant), they would have received far more relevant advice on how to resolve the problem.
Above all, when all is said and done, every time a judge has the courage and wherewithal to deal with an e-disclosure issue head on, it is for the benefit of everyone in the profession and Yeong Zee Kin’s deliberations are most welcome.
Since he wrote this (it came in before the latest flurry of conferences), Vince, Master Whitaker, Yeong Zee Kin and I all met up at IQPC in London. We next gather in Hong Kong on 7-8 July in Hong Kong, where we are all speakers at the InnoXcell e-Discovery and Digital Foensics Conference.The Deutsche AG judgment will feature there.