How much work should the clients put into their own eDisclosure / eDiscovery? We express caution at the idea that the clients should collect their own data, largely because of the risk that they will damage its integrity in the process or, at least, lay themselves open to the suggestion that they might have done. On the other hand, it is their case, their facts and their document collection, and it is right to hope for their input into the decisions as to what is important – or, to put it another way, it is rather arrogant for the lawyers to get stuck into a disclosure exercise without getting as much information as they can from the clients.
Laura Zubulake, she of the eponymous sanctions case in the US, is emphatic that her own detailed review and analysis of the documents, relying as it did on her own knowledge of her former employer, was crucial in challenging their discovery and winning her case.
Terry Harrison of Hobs Legal Docs tells an interesting story about a case in which the clients had devoted a great deal of time to their own painstaking analysis of the documents required for a case. Hobs first reduced the volume from its original 300Gb of forensically-collected data and brought it down to 40Gb. They then used Relativity Assisted Review (RAR) to help work through the rest, much aided by the work which the clients had done.
Terry touches on the extent to which lawyers trust technology of this kind, and rightly says that “economies of time and costs have to come into the reckoning”. One must also avoid the trap of hoping for and expecting perfection – that is not only unattainable by any means, including traditional manual review, but not required under UK Civil Procedure Rules or, indeed, under the Federal Rules of Civil Procedure in the US. Justice which the clients cannot afford is no justice, and proportionality should temper expectations.
The question to be asked is “Am I doing the best possible job consistent with the client’s objectives, the needs of justice, with proportionality and with my duty as a lawyer?” You fail on all counts if you ignore the efficiencies and economies which technology can bring. You fail also if you ignore the clients’ own contribution to the exercise.