Electronic Discovery: Francis Bacon and Concept Searching

Human errors and the human state of mind have a big effect on the decision making process in electronic discovery, but what are these errors?

A few hundred years ago Francis Bacon stated: The human understanding when it has once adopted an opinion (either as being the received opinion or as being agreeable to itself) draws all things else to support and agree with it. And though there be a greater number and weight of instances to be found on the other side, yet these it either neglects and despises, or else by some distinction sets aside and rejects; in order that by this great and pernicious predetermination the authority of its former conclusions may remain inviolate

What Francis Bacon was saying, rather elegantly, is that people stick to their guns. What he believed to be true in the 17^th Century, psychologist in the 20^th and 21^st century have now shown to be true.

Humans Examining Evidence

It has been demonstrated by psychologist that people often not only stick to their beliefs but they seek out evidence to re-enforce their own opinions and reject new evidence which is contrary to their belief. Test after test has shown this, and it can be seen in real life situations, from politicans to generals. In the run up Pearl Harbor there where there were numerous warnings that an attack was about to occur, including a Japanese submarine that was sunk just outside the harbor only 1 hour before the attack.  But the admiral in charge, Admiral Kimmel, had believed that Japan would not attack Perl Harbor, and so ignored the information and deliberately misinterpreted information, intelligence, and warnings – he stuck to his guns[1]. He did not even cancel weekend leave for his staff, or ask if the Army were manning the anti-aircraft guns (this would have only required a single phone call). This is not uncommon and people, of all levels, do this quite regularly. This state of mind effects scientist and politician alike.

Humans making decisions

Not only do humans often stick to incorrect decisions, but we are easily influenced. For example people will often follow something known as the “rule of primacy”. This says, in short, that the first thing people learn about a subject, they take to be true.

Example: If a person is told that Car A is fantastic by a friend of theirs, then they will tend to believe that, even if they are later told that Car A is less than good. In fact they will seek out evidence to support what they already believe.

Another well known cause of errors in humans is the availability error. This means that the stronger the memory, the more powerful the memory, than the more likely people are to make decisions based on that information. This has been shown in labs and the real world. For example, earthquake insurance in areas that have earthquakes increases immediately after a quake but decreases the longer it has been since an earthquake has occurred  – because the memory of the quake fades. However, the probability of quake increases the longer the time between quakes and safest after the quake. I.e. people are buying and not buying insurance at exactly the wrong time. Equally if people are asked to estimate which is the more common, words with beginning[2] with the letter “R” or having “r” as the third letter they will often say the former, as they can immediately think of words beginning with the R. Rain, rainbow, rivet, red, real, reality, etc, But, in fact there are more words with the third letters as “r”, street, care, caring, borrow, etc. However the people have the first letter “R” strongest in their mind, so that is what they believe.

Other well known causes of human errors include:

Peer pressure/conformity. People tend to follow the decisions of others, even when they are quite obviously wrong. There are well known examples tests of this, such as a person being put in a room with 5 or 10 other people and asked to complete simple tests such as say which is the shorter of three lines, or how many beats of a drum there was. The tests are simple; the beats would be easy to count or one of the lines would be obviously shorter, but the test subject would be in a room with 5 or 10 other people who were actors, paid to deliberately give the same wrong answer. If the answers of everybody were read out aloud the test subject would, more often than not, follow the incorrect answers.

Obedience/Management pressure: Following the opinion of their superior (depending on the culture), regardless of if it right is something that can often occur. This was most famously demonstrated in the Stanley Milgram tests where volunteers willingly applied enough voltage to kill other innocent people, simply because they were asked to.

There are many more examples proving these human conditions, and even more conditions that cause us to make errors on a day to day basis – it’s just the nature of the human brain. It is how we work (or don’t).

Electronic Discovery & Psychology

So what has all of this psychology and “soft science” got to do with electronic discovery?

Electronic discovery is historically driven by humans, from keyword selection to the relevance of a document.  It is the errors identified above, and more, that can come into play during a review.

Below are examples of how these well known errors can affect a review:

• Once a person decides on a keyword search criteria, once they have put their flag in the ground, they are, statistically, unlikely to be willing to change their mind about the value of the search criteria. They may even ignore evidence or documents that could prove otherwise. In fact research has shown that once a person states publically, or commits a decision to writing, they are even more likely to stick to their guns than somebody who makes that decision privately.
• If a person has to review another 500 page document, and it’s late and they want to go home, then may quickly start to believe that this document is not relevant.  They may start to scan  the document looking for information that demonstrates that the document is not relevant, rather than looking for evidence that shows it is relevant.
• A second opinion on document’s relevance may be sought, from a senior manager or colleague, and that opinion will then be followed through the review, regardless of it was right or not. Even if the original reviewer believes the opinion to be wrong.
• If a review platform does not record who made the decision of if a document is relevant or not, then the reviewer may be less inclined to be so diligent, as they are removed from their responsibility by anonymity. [Anonymity has also been shown to be an influencing factor in people’s behavior and choices].

Solutions?

There are methods to this try and reduce the amount of traps the human brain walks into. Simply being aware of the problems and making an effort to look avoid them is one solutions, e.g. consciously give as much weight to first piece of evidence seen as the last piece of evidence.

However, we are all fallible and in large scale reviews avoiding these errors is going to be very difficult to resolve, and possibly expensive in terms of time.

The most obvious solution is automation through concept searching. As previously discussed concept searching can be of great value during a large document review and, like all systems, it will have errors; but we know it’s not susceptible to the human failings discussed in this article.

It doesn’t matter what the system saw first, how strong or visual a document is, or what other reviewers think.  Concept searching will only apply, repeatable, known logic to a group of documents.

---

[1] As a result of this the Admiral Kimmel was later demoted

[2] This example is lifted directly from the book Irrationality, by Stuart Sutherland

Is Electronic Discovery Wrong?

The Hypothesis: Simply put electronic discovery is wrong. It is not 100% accurate, far from it. It’s inherently inaccurate. It misses out lots of data. The legal system should find other, more accurate methods.

__________________________________________________________________________________

Out of the ten of thousands of files collected from any one computer only a fraction of those are going to be taken out of the computer for full ED processing.

Out of the small percent that do get processed tens, hundreds or possibly thousands will fail due to errors, corroption, encryption, or other problems. Eventually, after the initial cull and the ED processing, a small set of data will be loaded into a review platform.  Once the data is reviewed even greater cuts will be made with huge percentages of documents removed through keyword searching.

This means that out of the 10,000s of documents originally available only a few thousands or a couple of hundred, per computer, will even be given the opportunity to be reviewed by teams of lawyers.

This is where the errors really start.

The bulk of reviews are conducted not by partners or senior associates, but by junior staff.  Sometimes contractors brought in for this purpose.  These junior staff people are working quickly, under pressure, with a requirement to review their assigned documents as quickly as possible.   The subject matter will often be new to them, the review platform may also be new to them, they are junior, under pressure, possibly tired, and working for long hours.  We don’t let people drive trucks in these conditions, let alone make decisions on multi-million/multi- billion dollar cases.

Even a highly experienced litigator, working short hours  on  a subject they know will make errors. It’s just a statistical fact. The junior staff, working in the conditions described will make a lot more errors; and these errors will not be even. The type of error that a person makes on one day will not be the same on another day, and different people will make different errors. This makes the QC of the errors difficult.

Does this  means that electronic discovery is wrong? Is it fundamentally flawed, so much so that a better method should be used?

No; quite the reverse.

Electronic discovery has errors, but so do must other systems of evidence. Fingerprints are not, as many people think, 100% reliable, but require human interpretation.

Witness statements are staggeringly inaccurate. A person who has witnessed a shooting or a road accident, will be traumatized, upset, angry, and influenced by the police (even accidentally through leading questions “Did you see the suspect get into a green car?”).  The witness will have their own prejudices about what they saw, what they think they saw, and what they think happened.  Witness statements are, in short, not 100% reliable.

Even DNA, the trump card in any investigation has errors, in all levels. The science is sound but humans make mistakes.

Does this mean that DNA, fingerprints and witness statements should not be used because there can be errors? Of course not.

The issue is not that mistakes are made, but that they are understood and accounted for.

Is the electronic discovery process less accurate than DNA or fingerprints, certainly? But does that matter?  The issue of accuracy must also be understood in terms of what is being measured.

If a forensic scientist makes an incorrect decision with their fingerprint or DNA analysis than they can state that Person A killed Person B, rather than Person A did not kill Person B (and this has happened, on more than one occasion). This is a massive error.

If ED processing is conducted incorrectly then a junk document, Document A may be reviewed by a lawyer when it was supposed to left out, or a document that was supposed to be reviewed was not.

Incorrect ED processing is very different. It does not change an accounting spreadsheet from profit to a loss, it does not make perfectly legal business transactions into a multinational fraud. ED processing does not interpret the data.

An ED processing guru does not go to court and state “Due to the MD5 value of this document I have  concluded that the money was moved from the US, to Switzerland, then back to BVI, for the purposes of tax avoidance, defrauding the US government of 7.5% of the gross amount in tax, meaning that the suspect only paid 11.5% gross. The net cost to the US government is $3.5 million. With that money the suspect invested in property, making a net loss over the year, for the investment, but he still retains assets of $2.5 million…..”

No, an ED guru should go to court and say “I have provided the documents as best as I can, not 100% of documents, but the best sample I can,  and here is how….”

Everything else is up to the accountants, lawyers, and other expert witnesses. This does not demean what an ED person does, but rather allows them to put it into perspective what they are doing and asses the risk.

If they are collecting hundreds of millions of documents (which is entirely possible), and thousands are not processed that is reasonable, expected, and required.

Electronic Discovery has errors, but it does not make it wrong.

White Paper: Litigation Support Marketplace

This White Paper is produce by Andrew Haslam, of AllVision.

© Andrew Haslam – Allvision Computing (01 March 2008)

The Litigation Support Marketplace – An Analytical Framework

The purpose of this white paper is to detail an analytical framework used to categorise and assess the tools and suppliers available within the Electronic Data Discovery (EDD) marketplace. In broad terms there are three main stages to the litigation life cycle:

• Capture of information.
• Preparation for trial.
• Presentation in the courtroom.

1.1 Litigation Lifecycle – Information Capture

Before the advent of Electronic Stored Information (ESI), in terms of EDD systems, the first stage of the lifecycle was primarily concerned with the scanning of pages, coding of documents and creation of Optical Character Recognition (OCR) text. Over the past 10 – 15 years this has been a stable and easily understood process, with suppliers able to provide relatively accurate estimates of the volume of paper within lever arch files and hence fairly rigorous costing estimates for the process. These estimates are based on industry normalised prices for handling the individual elements of the procedure, i.e. so many pence per document/page to disassemble files, scan pages, reassemble documents, produce OCR, conduct objective coding, etc. Although there will always be minor variations between suppliers due to different quality control procedures, software used, and plain old human errors, effectively the scanning and coding of documents has become a commodity item, with known elements of risk and risk reduction management processes.

1.2 Litigation Lifecycle – Trial Preparation

The trial preparation element of the lifecycle was where the majority of technical innovation took place from the mid 1990’s onwards. Software tools emerged which

provided functionality for lawyers to handle larger volumes of documentation. They enabled users to review documents on-line to establish their relevance, privileged and trade secret statuses, and then develop the issues and themes required to support the defence or prosecution of the case. Users could carry out the exchange of disclosure information and ultimately produce the documents required for the courtroom bundle. The software in this area developed from MS-DOS roots, into Windows based applications and then technology employing the design principles which underpin the Internet, i.e. becoming web based. Examples of this kind of software are Concordance, Summation, IntroSpect, Ringtail and iConnect. The initial focus of the development of these tools was on the requirements of this part of the lifecycle, with an emphasis on strong searching capabilities, identification of issues, key words, and themes, linkage to chronological analysis of events and very robust production capabilities. The development emphasis of these tools has changed over the past few years in response to the increasing volumes of ESI, see 1.6 below for further exploration of this proposition.

1.3 Litigation Lifecycle – Courtroom Presentation

Though quite a significant technological area within the United States, differences between the US and English legal systems, technical infrastructure and cultural acceptance, means that this is a very small element of the analytical framework. Effectively the UK does not have the “show and tell” approach to evidence favoured by the US and, with the exception of Livenote for stenography, there is not a lot of technology deployed within UK courtrooms. The one exception to this “rule” is the kind of technology deployed in the Bloody Sunday enquiry, or the Hutton enquiry into the death of Dr David Kelly. Outside of these examples, the UK courts remain worryingly technology free.

1.4 Litigation Lifecycle – Advent of ESI

Though ESI had always formed part of disclosure material, from late 2003 (particularly in the United States) there was a significant increase in both the percentage of disclosure consisting of ESI and the volume of the material itself. In reaction to this various  companies developed software products to enable users to meet the challenges of conducting Electronic Data Disclosure. These applications generally comprise of two elements. The first allows for the collection and filtering of the ESI. In this process, superfluous electronic files are discarded, duplicate documents removed and techniques employed to try to weed out irrelevant material.

At the end of this filtering process, the data is passed into an application that is geared to allow a large number of simultaneous reviews to occur under a robustly designed workflow, with comprehensive QC and reporting faculties. The main feature of this part of the lifecycle is the sheer volume of ESI and the impracticability of any supplier being able to provide an accurate estimate of eventual volumes and hence costings. Examples tools here were products such as Kroll’s Electronic Data Viewer (as was) and nMatrix’s (now Epiq) initial offering. These products initially focused on the “pure” processing and review of ESI, with data being handed off into systems such as Ringtail or IntroSpect. However, they very quickly evolved into systems which also try to provide the functionality required to support the preparation part of the lifecycle.

Hence Kroll’s Ontrack Inview offering, Discovery Mining’s eponymous product and Epiq’s DocuMatrix application. In response to this encroachment upon their marketplace, products such as Ringtail, IntroSpect and to some degree iConnect and Concordance’s FYI application have added “data processing” tools that offer functionality to pre-process, filter and sort data before it is loaded into their main software engine.

The main issue to be aware of when evaluating these tools is that there is, to some degree, a danger of comparing “apples with pears”. The ESI review tools come from a background of very strong review and workflow, ideal for dealing with the large volumes of ESI that are generated at the start of a project. They have only lately turned their Research and Development budgets towards the different requirements of the middle stage of the litigation lifecycle. Similarly the electronic case management vendors are moving into unfamiliar territory with their attempts to control the overwhelming flood of ESI at the start of the lifecycle.

The key point is to be aware of the different strengths of the products, balance that with the individual requirements of specific cases, tempered with the ethos and approach of the law firm and arrive at the most suitable software application for that situation.

Finally, within this area there is also the specialist sub-topic of Computer Forensics.

The functionality provided here ranges from the detailed restoration of “deleted” information from a computer hard disk, through to the bulk processing of information stored on back-up tapes.

The specialist organisations that operate in this area can provide a legally sound evidence trail for electronic information which may be appropriate for some cases. The majority of EDD projects will not need this kind of input, but it is an essential weapon to have in the EDD armoury.

1.5 Emergence of ESI based analytical tools Along with the problems raised by ESI, its very nature means that it also offers the potential for significant advantages in terms of evaluating and automatically grouping information. An early player in this area was the Autonomy product which employs Artificial Intelligence techniques and a “learning” process to identify patterns and documents corresponding to a certain type, i.e. initial Privilege calls based on a knowledge base built up over months of training. This approach relies upon users supplying the key words and issues which they think are relevant before the analysis works starts.

Increasingly, the marketplace is seeing products which work by grouping similar documents together. The “similar” assessment is done by linguistic matching, i.e. documents with the same sets of words are grouped and similar groups are linked via a concept spine. These “Analytic” tools do not rely upon user preconceptions as to the relevant or important themes before the case, instead they reflect what actually exists with the electronic material. A known layer in this market is the US product Attenex, which is now being challenged by the built-in analytic tools of Kroll’s Ontrack Inview, Discovery Mining’s product and Epiq’s DocuMatrix as well as direct competition from Recommind’s Axcelerate eDiscovery product.

Though this category of tools provides significant savings in terms of time and effort in cutting through the initial review phase for ESI and can provide valuable assistance in case development, they do not (at present) provide enough functionality to take a case all the way through to the end of the preparation phase. As such, they would currently be used as an adjunct to a electronic case management system.

1.6 Analytical Framework

Based on the above analysis, the following categories / functional groupings exist within the analytical framework. Because of the overlapping nature of this environment, there are some companies/products which will span more than one category, however, this approach does provide a methodology for conducting the review process required within this assignment. The groupings are:

a) Provision of scanning / coding facilities: Despite the increasing volume of ESI within disclosure material, there still is a residual element of paper. Currently, even if firms are moving towards a electronic case management environment based on an electronic approach, then there will be an ongoing need to scan, OCR and code paper files.

b) ESI collection: The issue of collecting ESI at the start of a project can be a problematic one. In a number of large cases, it may be prudent to employ a third party

organisation to assist / carry out the process. This service is normally provided by vendors who also process the data, though it also part of the “one stop” approach offered by accountancy consultancy firms.

c) ESI processing / review tools The need here spans both the in-house requirement to process information and the need to establish preferred suppliers to cope with larger volumes.The cleaned and de-duplicated data might then be returned to a law firm for loading into their selected environment, or might be reviewed in a hosted application.

d) ESI analytic tools: The selection of an analytic tool is not an essential part of establishing an EDD environment, but given the fast moving developments in this area, it is considered as an issue which should be evaluated. The key decisions in this area will probably focus on either using the “built-in” analytics modules of EDD tools (normally provided at an additional cost), or deploying a discrete tool in its own right. As ever, the particular requirements of individual cases will define the outcome.

e) Electronic Case Management applications / vendors: This is the area of greatest overlap and the one where individuals should try to understand the differences between the different software vendors as well as the similarities. Products which are excellent at the large scale processing and review demands of cases will be ideal for some large volume collection exercises with tight deadlines. Relatively smaller cases with more complex issues leading to deeper demands on the case preparation side of things will suit the products with roots in that part of the litigation lifecycle.

f) Computer Forensic capabilities: Within law firms there is normally a low level requirement for these specialised services which should be addressed by the establishment of preferred suppliers. Experience normally shows, that when these kind of services are required, they are needed on very short notice with immediate effect, i.e. we need to image a suspect PC tonight in a forensically sound manner, or we have 200 backup tapes we need to restore and examine. Once organisations with the required skill set have been identified, then a preferred supplier status should be established with selected companies.

g) Overall EDD project management / consultancy support A number of the professional services firms operating in this area, e.g. KPMG, Deloittes, Ernst & Young, PWC offer overall project management support for larger EDD projects. However, this area is also considered as a strategic requirement as the role of litigation support within a law firm, increasingly moves from an individual who knows how to get the best price per page for scanning and coding, into the arena of central co-ordinator, orchestrating a project involving the firm’s lawyers, the client, external vendors and external parties including barristers and joint/opposing law firms.

1.7 Conclusion

The aim of this white paper is to provide an overall analytical framework so that readers can have a reference model in order to compare the relative merits of competing vendors. There is no “right” answer to the question “which product is the best?”. When law firms establish panels of preferred suppliers, the successful vendors vary according to which provide the tools and personnel which most closely fit the work type and ethos of the law firm. As in all things in life, you get what you pay for, and if in doubt, take advice from those who know what they are talking about.

© Andrew Haslam – Allvision Computing (01 March 2008)

Electronic Discovery: What is Linear Review?

What is linear review?

A “linear review” is a traditional review of documents within an electronic discovery review platform.This means that the legal team, review team, or investigators, will look at one document after another, ordered by date or keyword relevance.  This is very much a brute force method to reviewing the documents, looking at one document after another, until the entire data set is complete.

If the aim is to review the entire mail box of one custodian, this is probably the best method of conducting the review.

But if the aim is to find documents relevant to a breach of contract across company, over a a 5 year period where there could well be millions of documents, a linear review will either be hugely expensive or impossible to attempt, due to the time, resources, or costs involved.

In these large scale reviews, concept searching methods or “non-linear” review are often employed, as they are the only feasible method of approaching the task.

Case Law: Disclosure Hedrich v Standard Bank London Ltd

The case of  Hedrich v Standard Bank London Ltd at the court of appeal in 2008 is a veritable essay on the failings of disclosure by a solicitor under the Civil Procedure Rules Part 31.

The judgment, written by Lord Justice Ward,  is both pithy and witty starts with with the statement that  solicitors should carry a similar warning to cigarettes, in respect of their costs.

Following  litigation between the Bank and Hedrich a consultant relating to billing, the bank sued Hedrich for costs, due to the failure to disclose information/data on time.

In the case it was clearly shown that there was a failing to disclose on time, with multiple lists of documents produced, disclosing documents. Lord Justice Ward even described the original trial and disclosure as a “shambles” putting some the blame with the solicitors, Zimmers and some with Hedrich. The main problem revolved around the failure to disclose a CD of data that Zimmers had in their possession but denied/forgot they had.

Below is an except from the judgment in the court of appeal  showing the chaos of the disclosure:

24)  On 18th May 2005 Master Leslie gave directions for standard disclosure by list by 30th June, subsequently extended by agreement to 7th July, with the trial to take place in the Michaelmas term 2005. The claimant’s list was dated 21.6.2005 and simply listed six categories of documents including “documents relating to letter of credit in favour of Metis and related documents”. There was no reference to missing e-mails. In response to a complaint about the deficiencies in relation to that disclosure Zimmers sent a revised and expanded list dated 22nd July containing 123 documents but there did not appear to be any further documents relating to Metis. This led to a further protest about deficiencies with the disclosures. Mr Zimmer said he would see his client in Germany on 16th August but that had to be postponed until the end of the month. This should have given him the chance for a thorough investigation of his client’s documents, both those electronically stored and those on paper. Even after that visit, the revised list dated 13th September contained 171 documents, only some of which related to Metis. When it was pointed out to him that some of these documents referred to enclosures which were not themselves disclosed, Mr Zimmer said he would review the matter.

25)  In his evidence filed in his application to come off the record, Mr Zimmer revealed (though why this privileged information was disclosed is unclear) that there was a conference with counsel on 3rd October when the claimant gave instructions that he had not acted for third parties or otherwise in breach of the consultancy agreement. We do not know much more than that about what took place on that occasion.

26)  The Bank sought an adjournment on grounds that the claimant’s disclosure was incomplete, the case was not ready and the time estimate was too short. The Bank indicated that they had become concerned to make wider enquiries into facts and matters until then unknown to the Bank, particularly the claimant’s dealing with a Mr Tusder which might have been in breach of the Agreement. They gave notice of the possibility of a counterclaim to plead repudiation. The Bank also stated that it intended to disclose further documents – “we envisage a significant amount of further documentation will be produced once the Bank’s further diligent and rigorous enquiries are complete.” I mention this because in an appeal wholly based on Zimmers’ failures, there may be, I say no more, a little element of the kettle calling the pot black, at least at this stage in the litigation.

27)  Silber J. refused to adjourn the matter and ordered on 21st October 2005 that there be mutual supplementary standard disclosure by 4 pm on Friday 4th November 2005 in relation to the issues to be tried at the hearing set to commence on 21st November 2005. Such disclosure was to include the provision of e-mails and other documents relevant to the issues.

28)  A few days later Mr Zimmer met with the claimant and Mr Kaul in Hamburg. His priority was to finish the claimant’s witness statement. During the visit Mr Zimmer was shown a mass of documentation contained in clear plastic wallets piled on the claimant’s desk, floor and other furniture. On looking through some of this material it appeared to him that all of these papers related to matters before the period of the consultancy or after its expiry and for that reason he did not consider them to be relevant in the action. Whilst there he took instructions from Mr Kaul because he had been told by the claimant that Mr Kaul had managed to retrieve all of the T-Online e-mails from the claimant’s computer. He took a witness statement from him which was served in the trial and Mr Kaul was called as a witness. Mr Zimmer was told by Mr Kaul that he had copied the complete hard drive from Mr Hedrich’s computer onto his, Mr Kaul’s, laptop, including the e-mail files which he had been able to open using T-Online software.

29)  On 4th November 2005 both parties gave the supplementary disclosure pursuant to the order of Silber J. Zimmers also served a witness statement of Mr Kaul and a CD Rom entitled “e-mail correspondence claimant-defendant”. (This is not the Kaul CD Rom.) In a letter of 8 November Zimmers wrote:

“3. We have taken instructions again and our client confirmed that the e-mails we have disclosed in this cd-rom are the only ones our client has on his system relating to METIS. We hope to receive by fax today the e-mails as our client prints them out in Hamburg and sends them to us by fax. This should show the date and time of the original e-mail.

4. At the outset our client was not able to access the e-mails which were later recovered. As far as he was concerned they were gone. That is the basis of his original instruction to us. You are welcome to cross-examine him on this point at trial if you wish.”

Later about 1600 hard copy pages were delivered in four arch lever files.

30)  Such was the muddle and confusion over disclosure and what was an original document and what was a copy that the trial which had been fixed for 21st November had to be adjourned, with both parties being given permission to amend. On 24th November the Bank for the first time pleaded the case on which they eventually succeeded, namely the repudiation by the claimant working for others in conflict with his duties to the Bank. Unusually, but understandably in the light of that confusion, Mr Zimmer was ordered on 29th November, the second day of the trial, to file an affidavit stating with precision in relation to each document when it arrived, how it was dealt with and how it was disclosed.

The judgment went on to say that

” The disclosure given by Mr Hedrich may have been defective, as was conceded. But that is not the issue. The issue is whether Zimmers were clearly and obviously in breach of their duty to the court to ensure that the client properly discharged his duty to give proper disclosure.“

The issue for the Bank was their action blamed Zimmers, and as the judge implied on several times Zimmers did appear to be at fault. However in the preceding case the Bank had gone to great lengths to demonstrate that Hedriech was not a reliable witness resulting in the following problem.

“The supreme irony of the Bank’s case [is that]…. [t]he Bank spent days successfully cross-examining Mr Hedrich up hill and down dale, not just on the curiosities of his disclosure but of essential conflicts between him and his witness Mr Tusder. They painted him to be a liar and they were successful in that endeavour. In doing so they have destroyed Mr Hedrich’s credibility and they cannot in those circumstances succeed in establishing as a strong prima facie case that his word should be preferred to that of Mr Zimmer, a solicitor of the Supreme Court. “

Therefore while Zimmers had failed to disclose the document, and there was a “shambles” in the production lists, the court stated that:

“I am not satisfied that Zimmers were negligent at all. They produced the [missing data] when its relevance was reasonably obvious. By then all the costs had been incurred and causation is not established.”

A brief summary of the cases, is also available at 7 Bedford Row

• The Bank lost its appeal against a refusal by the Judge at first instance to make a wasted costs Order against Zimmers.
• He stated on disclosure that document had been lost. In fact they had been retrieved by an expert and placed on a CD Rom 9 months before the trial and 5 months before Disclosure.
• The solicitor had been told of the existence of the CD then but he did not receive a copy until shortly before trial and did not then examine it
• He did not realise that it contained relevant documents and disclose them until the 3rd day of the trial.
• The Court held that the issue was whether Zimmer  was clearly and obviously in breach of his duty to the court to ensure that the client properly discharged his duty to give proper disclosure
• Given the difficulties in reading the CD ROM and given the reasonable expectation that it contained nothing which was material, it was not negligent to have left this unopened until information at trial made its relevance plain.
• By then all the costs had been incurred and thus causation was not established