The Lawyer’s great debate: e-disclosure

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  • I'm concerned that people will selectively take Master Whittakers comment (quoted above) of,
    "Forget keyword searches - they’re totally ridiculous."
    and run with it slightly too hard.
    Keyword searches (when agreed with the opposing party and derived using a defensible methodology) provide a very useful tool for significantly reducing the number of documents for review.
    This brings clients costs down both from a processing perspective (if using a service provider who charges by what makes it through the culling process) and more importantly from the review perspective.
    The reality of e-disclosure in the UK is that law firms and lawyers are just about getting their heads around culling document collections using date ranges, deduplication, custodians, media and keywords. And so whilst clustering and predictive coding technologies are without doubt very useful in some cases the majority of litigation will simply not touch on the these technologies which the majority of people (both within service providers and law firms) do not understand.
    We are currently seeing a debate in the UK on e-disclosure issues which is great but is only partly being driven by the legal profession. To a far greater extent is being driven by what service providers are trying their hardest to sell. This in turn is, to a large extent, driven by the US e--discovery market. We need to realise that disclosure and discovery are two very different processes that rely on the same basic technology and have very different areas of emphasis.
    We should concentrate on everyone getting the basics of disclosure right before trying to get too clever with cutting edge technologies.
    The basics are;
    1. Build a complete picture of what your client has
    2. Arrive at an educated and informed decision about how you'd like to limit your exercise in terms of;
    Date Ranges
    Custodians
    Media
    Deduplication
    Keywords
    3. Be reasonable when reaching agreement with you opposition (you'll reap what you sow).
    4. Get a selection of quotes for the agreed processing work.
    5. Get a selection of quotes for the review work (internal, onshore, offshore).
    If you do all of these steps you should have a relatively simple, clear, agreed disclosure process which is done efficiently and within budget.
    You just need to know what you're talking about and be organised.

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  • See the practical work on this topic by Simon Attfield and Ann Blandford in their article 'E-disclosure viewed as ‘sensemaking’ with computers: The challenge of ‘frames’' published in the Digital Evidence and Electronic Signature Law Review, Volume 8, 2008: http://wwww.deaeslr.org/2008.html

    Stephen Mason

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