Hugh James E Disclosure

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Hugh JamesE Disclosure A Roadmap

• Andrew Haslam

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Scale of the Problem

• 98 of new information is stored electronically,
  2/3 never printed.
• By end of 2006, 60 Bn email messages were sent
  each day.
• 60 of business-critical information is stored
  within corporate email systems, up from 33 in
  1999.

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Economics of E-Disclosure

• Time costs
• 3bn on litigation fees
• 20 of total time on document review 600m
• Technology can reduce review time by up to 8
• Potential saving of 500m
• Disbursements
• Process electronically once at 0.0x per page
• Photocopy many copies at 0.0x per page

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Litigation Support Tools
Scanning, OCR, Coding
Litigation Support
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Key Issues

• CPR has changed.
• Volume, Volume, Volume.
• Next generation of tools.
• Embedded personal data.
• When do I ask for external help?

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Current Case Law

• Not a lot
• Hands v Morrison
• Case shows importance of planning the edisclosure
  process
• Douglas v Hello
• Case shows importance of email in establishing
  chronologies.

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1 Data Sources Volumes

• Need to allow enough time for
• Planning.
• Preservation.
• Disclosure.
• Clients IT Infrastructure and Strategy.
• Develop a search strategy.

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A document is

• anything in which information of any
  description is recorded and is not restricted to
  paper writings but extends to anything upon which
  evidence or information is recorded in a manner
  intelligible to the senses or capable of being
  made intelligible by the use of equipment. This
  covers electronic documents, including email and
  other digital forms of communication,
  word-processed documents and databases. The
  definition also includes edocuments stored on
  backup systems and edocuments that have been
  deleted. It also includes that class of
  additional stored information associated with
  electronic documents and known as metadata.

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Documents are

• efiles (Word, Excel PowerPoint).
• Emails.
• Text Messages.
• Data on PDAs, MP3 Players, Flash drives.
• Instant messaging (IM).
• Audio Files (and Mpegs).
• Metadata.
• Wikkis and Blogs

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External Expertise?

• High volume of relevant edocuments or review
  material.
• Allegations of fraud involving edocuments.
• Time-critical analysis of edocuments.
• Recreation of the historical state of PC.
• Suspicion that edocuments have been deleted or
  altered.
• Regulatory body investigation

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2 Ensure Preservation

• Issue Hold order to client.
• Ensure clients legal team and IT department are
  talking to each other.
• Consider imaging PCs, segregation of back-up
  tapes.
• Check what the other side is doing.

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3 Reasonable Search

• Work out your search universe.
• Establish available filters/tools.
• De-duplication, key words, date ranges, data
  custodians.
• Agree parameters with the other side.

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Efficiencies in E Disclosure
Original Volume (and Cost)
Scope
Preserve
Gather
Process
Host
Review
Present
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4 Data Collection

• Consider privacy legislation embedded data.
• Evidence destruction.
• Who conducts the collection?
• Tapes as a last resort.

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5 Document Review

• Depends on data and your IT capabilities.
• Increasing scale and complexity increases
  likelihood of external help.
• Talk to IT and PSL.

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6 Production Exchange

• Agree format with other side.
• Native v Tiff.
• Create disclosure list.
• BATES numbers / file naming conventions.
• Back into review process, emphasis on case
  preparation.

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7 Courtroom Services

• What facilities does the court have?
• Laptops or link to web services.
• PDF bundles (with links).

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EU Peculiarities

• Differing EU standards for data protection.
• US compliance v EU Data protection.
• Consider jurisdictional implications.
• Multi-language documents (Unicode Litigation
  Support systems).

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Federal Rule Changes

• O1 December 2006
• Mandatory early discussions.
• Identification of excluded data sources.
• Proportionality, though concept of safe harbour
  didnt make it through.
• Encouragement of two tier approach, with agreed
  exchange format.
• Limited protection against inadvertent Privilege
  production.

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Practical Tips
Do
Dont

• Receive edisclosure on a CD/DVD
• Make copies
• If in doubt, ask for help

• Open email attachments
• Print
• Turn on suspect machines

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Trends

• Steady rise in small medium sized cases.
• Intelligent initial data capture.
• Litigation Readiness.
• Increasing partnerships with external agencies.

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Litigation Readiness

• Better fence at the top of the cliff.
• Study to identify
• Policies for storing data.
• Where it is located.
• How would you retrieve it.
• How do you change?
• Make the changes.

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Available Partners

• Consultancy
• Deloittes, KPMG, LECG.
• EDD Suppliers
• Kroll Ontrack, Lexis Nexis,
• LDM, Legal Inc, nMatrix, Trilantic.
• Software Vendors
• Ringtail (FTI), IntroSpect (Zantaz),
• iConnect, Summation, Concordance,
• Attenex.

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Indicative Costs
Image a PC 500
Restore a tape 500 - 5,000
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Questions?

• Andrew Haslam
• Andrew.haslam_at_allvsion.co.uk
• 07789 435080