In a claim where the Claimants claimed some $65m, Mr Justice Coulson, dealing with an application made by the Defendants, set out useful guidance on the use of e-disclosure in the TCC.
The judge, in giving his judgment, commented that disclosure had been “something of a running sore” in the case and highlighted the approach that should be adopted by parties where large numbers of documents need to be reviewed for the purposes of disclosure.
The judge put Practice Direction 31B, relating to the disclosure of electronic documents, as well as the TeCSA/TECBAR eDisclosure protocol used in the TCC at the heart of his judgment, and addressed the issue of proportionality, while highlighting the relevant case law (Nichia Corporation, Digicel, Pyrrho Investments Limited). In fact, the judge found the TeCSA/TECBAR protocol to be of greater value than PD31B as it provides “the clearest possible guidance as to how this work [eDisclosure] should be undertaken.” He went on to state that the approach taken by some that protocols have no normative force was “rather old-fashioned” and that this approach “misunderstands the importance of protocols in the TCC, where the courts overarching requirement is that the parties cooperate and comply with them, unless there is a very good reason why not.” This approach effectively echoes the overriding objective.
It was also suggested that best practice when performing Computer Assisted Review (‘CAR’) was to use a senior lawyer who could oversee the operation who has mastered the issues in the case who can consider the whole sample rather than using a large group of junior lawyers whose results could then be called into question.
In the instant case the Claimants had failed to liaise effectively with the Defendants and had made unilateral decisions as to the proportionality and relevance of the searches they had made. The judge, drawing on his experience of these sorts of exercises, also felt that it was likely that the estimate given by the Claimants in relation to how much relevant material might be present in the unsearched documents was an underestimation. The lack of detail provided by the Claimants in how the exercise was carried out was a further cause for concern. As a result the Claimants were given three weeks in which to manually search 62,500 documents, while the Defendants’ other application was dismissed.
From this judgment it is clear that parties should have the relevant protocols at the forefront of their mind and their approach to this issue in litigation where there is likely to be a large amount of disclosure and documentary evidence. Communication with other parties, effective oversight, and a detailed record of the steps taken in disclosure should be considered as a minimum in cases such as this.
Will Skjøtt / 13th Mar 2018
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