The major cases last year relating to the civil procedure rules part 31, were all different, with different problems, but they have something in common – bad advice.
- Digicel case related to keywords, and the duty of search
- Hedrich v Standard Bank cases, which involved a chaotic disclosure process.
- Abela v Hammonds case – in which back up data was not processed, the search was not reasonable
In all of these cases it appears the solicitors firms provided poor advice to their client, and that may well be true, but is that the end of the story? Why was bad advice given?
The DigiCel revolves around keywords, and keywords not being used correctly. If a different litigation support company had been used, then different options may have been provided to law firm and therefore their client. For example, some electronic discovery companies charge per unit of data processed, and therefore the law firm will need to cull the data as much as possible using keywords. There is a financial incentive, often a very significant one, to cull the data as much as possible as early as possible.
Other consultancy firms charge on a consultancy basis, and so if the data is culled or not makes no difference to their billing rates.
Some firms, in the later category, will load everything into a review platform and then filter the keywords at the clients requests. This means that if the keywords change, at the request of the client or court, the full set of data can be viewed very quickly, at little to no cost, this provides a significant advantage to the instructing solicitor. However, companies with a rigid pricing structure per unit would require that the entire data set was reprocessed, at potentially prohibitive costs to the client.
Hedrich v Standard Bank
This case involves failure to properly disclose data, and in particular a CD. If Zimmers, the law firm involved, had instructed a electronic discovery firm that had a full list of exhibits, electronic database, and tracking system, they would have known, immediately that they did not have the full set of data.
Abela v Hammonds
In this cases there were several issues, but the one of interest is the instructing law firms failure to process and search the email data on back up tapes, as they stated it was not reasonable.
It appears that the solicitor was not advised correctly. Email data, on tapes, unless its highly unusual can be processed quickly and effectively with modern tools and technology. IndexEngines allows tape data to be searched from numerous email platforms, keyword searched, and then only the relevant data extracted directly from the tape, in a ready to load and process format. Companies like Palmer Legal Technologies, offer fast and efficient services, to process tapes and provide consultancy advice.
Tapes can be complicated, e.g. if there is a tape back up every day and every month, can a monthly tape contain everything that is on all 20 tapes? (answer – depends on the deleted cache retention policy).
Therefore quality advice and quality technology needs to be obtained by the law firms. Some (not all) companies, particularly a couple of the bigger firms, have fantastic technology, but its fantastically expensive and they want the client to use a methodology that fits their process, and their tools, not the clients.
When a case goes wrong the law firm will get blamed in court, the reality is that while they took the decision to court, the biggest error they probably made is the selection of their electronic discovery consultant in the first place.