Reducing the number of documents to be reviewed

Charles Christian’s Legal IT Insider has published a very good article by Drew Macaulay, Managing Director of Consilio in London. Its title is Establishing effective cost controls in litigation and regulatory investigations, and gives the same emphasis to budgets as a Consilio webinar due to take place on 24 January (I wrote about it here) and registration is here) called Understand and control discovery costs in cross-border litigation.

Consilio-webinar

Drew’s article needs no summary from me – it is a clear and succinct explanation of the factors to be taken into account in any eDisclosure / eDiscovery exercise. I draw it to your attention, and specifically in a UK civil procedure context, for one half sentence in the article which reads:

“The primary cost driver and disclosure exercise is the number of documents that need to be reviewed…”

DrewMacaulayDrew Macaulay uses this as a springboard for an argument in favour of defensible deletion, that is, the considered removal of a company’s documents and data which serve no purpose and which add substantially to the expense of each succeeding eDiscovery exercise. Companies who have not done this find themselves having their lawyers undertake their information governance for them, at their hourly rates and in a hurry.

That is good advice, but Drew’s sentence has relevance also within any case and whether or not there has been a prior programme of defensible deletion.

The UK civil procedure rules allow – indeed require – a close focus on “the number of documents that need to be reviewed” and it is worth drawing them specifically to your attention.

If you seek arguments for reducing that review pile then look at:

CPR Rule 31.6 which provides a much narrower test for disclosure than the old test of relevance.

CPR Rule 31.7 which limits the scope of the reasonable search.

The new CPR Rule 31.5 which, amongst other things, requires you to consider which of the “menu options” is appropriate for the case.

Senior Master Whitaker’s judgment in Goodale v Ministry of Justice whose focus was on minimising the pile for review.

Between them, these provide a rules-based set of limitations on the scope of disclosure which, when added to the other factors which Drew Macaulay recites, can have a significant impact on the time and cost of disclosure. Time has always mattered, but the latest pressure bearing on litigation solicitors is the need to observe strictly the deadlines imposed by the rules or by any order. Since the Court of Appeal’s decision in Mitchell v NGN this has to be taken seriously. The bigger the scope of potential disclosure, the harder it is to produce a proper budget within the required deadlines.

If you are looking to trim your budget as is now expected by the court, and to control the costs as the action proceeds in order to keep within that budget, the first place to look is “the number of documents that need to be reviewed”. The decision-making which limits the scope is for the lawyers; service providers like Consilio have the tools and the experience to help achieve it.

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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 Consilio, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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