Cutting disclosure costs
Disclosure: let's not kid ourselves, it's expensive. Until somebody invents a smart, reliable (and cheap) robot that can scan millions of documents in seconds, the most critical part of the disclosure process – searching for disclosable documents amid piles of irrelevant documentation – is always going to fall to a human.
Which is a bit of a rub now the Jackson report has called for cost reductions across the civil litigation system.
And it is certainly true that disclosure could sometimes be more financially efficient: the disclosure process is all too often liable to turn into a bit of a financial black hole.
Unfortunately, this is not a problem that is easily solvable through technology – for now, at any rate.
While improving technology may be able to narrow the field of document capture somewhat, the vast number of files, formats and devices involved in electronic disclosure threatens to increase the time and cost overall – despite vast improvements in computing power and software's artificial intelligence.
Finally there is the fact that searching for evidence usually demands expert knowledge about an industry or a specific case, so it is not always a task that can easily be handed to an office junior or outsourced to a low-cost team overseas.
So how do you contain costs in disclosure – an inherently costly exercise – without compromising the process?
The search for savings
Conceptually, electronic disclosure is relatively straightforward: get digitally stored information, search it for relevant items and disclose them.
In practice, pulling electronic data off diverse sources is difficult and time consuming. Further problems arise when determining where, when and whose data should be searched and how to review it sensibly.
A simple keyword search for a particular term in an electronic disclosure process will typically throw up far too many false positives to be relied upon as a sole screening method, and that is assuming that electronic data is in a format that can be easily searched in the first place.
Files such as PDFs, fax scans and other graphical images need to be converted into a machine-friendly format prior to searching.
Add to this the fact that electronic communication usually comprises many more individual messages, in many more formats, than paper-based records, and it is evident that for the time being, at least, technology is more likely to add to disclosure costs than reduce them.
The Jackson report recognises this, saying:
'On the one hand, full disclosure of all electronic material may be of even greater assistance to the court in arriving at the truth than old style discovery of documents. On the other hand, the process of retrieving, reviewing and disclosing electronic material can be prodigiously expensive. Certain short cuts are available, such as the use of keyword searches. However, the sheer volume of potentially disclosable electronic material which is now generated in the course of a project means that disclosure is now becoming an even more expensive process than formerly.'
Some newer techniques, such as concept searching, similar document identification and various other technological methods to sift through tremendous amounts of data, suffer from the same inherent flaws as basic keyword searching.
As the level of digital documents increases (and it is estimated to double every 18 months), so do the number of false positives.
Advances in intelligent searching may offer some hope in reducing the costs of a human legal review, but those technologies are still in early stages of development and have significant processing costs.
A commonsense, non-technical approach
The key, instead, is in the Overriding Objective of the Civil Procedure Rules, which essentially provides for a lot of flexibility in allowing the parties to agree to the extent of disclosure.
Interestingly, Jackson comments that the 'steps required by Section 2A of the Practice Directive have not become widespread practices or expectations. The PD is often ignored.'
Much of the cost can be curtailed at the outset of a case simply by both parties agreeing in advance on a sensible level of disclosure, covering both the extent of disclosure and the methods that will be employed to carry it out.
What this implies in practice is that disclosure can, and should, be a proportionate review of potential sources of evidence rather than a leave-no-stone-unturned quest for every relevant document in a case.
In addition, solicitors have to consider the likely value of any documents in respect to issues before the court.
The critical point here is that, per recent UK case law, the requirement for a reasonable and proportionate approach to disclosure is such that if a piece of smoking gun evidence is not found because it fell outside appropriately designed, and agreed, disclosure parameters, so be it.
There are a wide number of exotic technology issues raised in the Jackson report, such as searching for non-Western characters and dealing with redactions or encrypted documents. Jackson also highlights a recent change in the US disclosure practice wherein unintentional or accidental disclosure of privileged documents may not amount to a waiver of privilege in some circumstances.
However, the clear message is that such possibilities only increase the need for, and value of, a robust discussion between the parties regarding the cost and benefits of such activities.
Understanding the stakes
How much could a better thought-out disclosure process save? Well, how much do you think it would cost to carry out an electronic disclosure process on a single additional back up tape?
By the time the data has been restored, extracted, de-duplicated and processed into a review tool, the cost could easily add up to tens of thousands of pounds, not to mention the cost of the legal review.
Clearly, in some instances there will be an obvious case for proceeding, on the grounds of a clear likelihood of success in finding valuable information. In other instances, though, the case might not be so clear-cut.
Is it worth going through this expense and effort just on whim? You decide. But it is fairly obvious what Lord Justice Jackson would think of the matter.
To discuss this article or any issues relating to it, contact Jonathan Meyer on jonathan.meyer@bdo.co.uk or 020 7893 2996.
