Governing database use

Keith Dixon on the conflicts arising from the use of litigation support databases. Keith Dixon (pictured) is an Advocate of the Royal Court of Jersey and works in the litigation group at Ogier & Le Masurier in Jersey.

TRIAL lawyers are increasingly using litigation support databases and the courts are currently in the embryonic stages of formulating the laws surrounding their use.

A litigation support database is a computerised document management system with two main parts – an index of information about the document and scanned images of each page which can be viewed on a computer screen. The advantages such a system has over the traditional use of paper are obvious: massive amounts of information can be accessed in seconds.

Three issues affect the use of a litigation support database: what it will do; what access the other party to the action will have to it; and who will pay for it.

The Royal Court of Jersey recently considered the first two of these issues in the case of the American Endeavour Fund Limited v Arthur Trueger & ors (Royal Court of Jersey, 23 January 1998) – which involved around 1.3 million documents.

The parties agreed to a court order in the following terms: "That [they] should, by 16 May 1997, furnish each other with a list, verified by affidavit, of the documents which are or have been in their possession, custody or power, relating to any matter in question in the action with inspection of the documents to be given by CD-Rom by 30 May 1997."

A dispute arose regarding the inspection of the documents and over the construction of the phrase "inspection by CD-Rom".

The plaintiff issued a summons seeking, inter alia, an order that the defendants remedy the "defects in their discovery" as detailed in a schedule attached to the summons, and produced affidavit evidence showing it had identified eight problems with the quality and accuracy of the information on the defendants' CD-Roms – including missing images and duplicate pages.

The defendants objected to this and argued the plaintiff was complaining about inspection, not discovery. They also maintained the plaintiff was really trying to obtain an enhanced database capable of performing comprehensive searches not envisaged under the terms of the original Order of the Royal Court.

Ultimately, the Royal Court adjourned and directed the plaintiff to set out what it thought should be provided by way of facilities for inspection, and for the defendants to answer this, so the Royal Court could decide what it expected of the parties. The case settled a few weeks after this judgment was given.

A recent High Court case has considered the issue of cost. In Grupo Torras SA & anor v Sheikh Fahad Mohammed Al Sabah & ors (QBD, 21 October, 1997), the plaintiffs' solicitors had scanned 50,000 documents into a database and produced CD-Roms.

The defendants' solicitors asked for copies. The plaintiffs' solicitors agreed but only at a price equivalent either to that of their being photocopied or to that of an outside contractor's scanning fee.

The defendants offered to pay for the disks on which the documents would be provided.

At the summons for directions Judge Mance left open the question of whether the High Court had any power as to the form in which the provision of copy documents should be made pursuant to RSC Order Ord.24, r.11A.

The High Court rejected the plaintiffs' application to recover a price equivalent to that of photocopying, and noted that because the plaintiffs had undertaken preparation of the CD-Roms for their own purposes they should only recover the cost of cutting and supplying the CD-Roms.

The court also noted that the cost of scanning was not recoverable, but would form part of the plaintiffs' reasonable costs of the action which, if successful, they could seek to recover on taxation.

Ideally parties to an action should meet early on to decide exactly what their respective litigation support databases will do and how costs will be decided. The parties should attempt to use the same system as each other, and adopt the same coding methods. They should also discuss whether they will exchange their respective coding manuals so that each side can properly understand and interpret the information which it receives from the other when the CD-Rom disks are exchanged.