Situation

A key law firm client referred us to another legal team we hadn’t previously worked with to assist them with a new complex and multi-jurisdictional disclosure. The claimant firm is involved in a large-scale class action against two subsidiaries of a multinational conglomerate.

The opposing party is using aggressive correspondence to pressure our client into accepting the International Legal Technology Association (ILTA) standardised disclosure format without due consideration for the nuanced aspects of the case. While the ILTA's recommendations provide a solid foundation for disclosing information, every case is unique, and the standardised format can favour one party over another, as was the case with this matter. The below key points highlighted how we were able to assist the firm in dealing with the defendant's proposed Electronic Data Questionnaire (EDQ) requirements:

Solution

Sky Discovery assisted the firm by reviewing the proposed Electronic Data Questionnaire (EDQ), uncovering numerous areas where the suggested approach favoured the Defendants. The matter was consolidated in the King’s Bench Division (KBD), which had not adopted PD57AD at the time of writing.

• The Defendants were proposing overly broad keyword terms, which would have resulted in a “document dump” – a strategy commonly used by Counsel to large corporations with significant resources to fund a prolonged review process that may be difficult for the Claimants’ Counsel.

• According to the EDQ, the Defendants had suggested that they only retain email records for 90 days. This implied that no relevant correspondence was available for review and disclosure during the specific period in question. However, Sky Discovery advised the Claimants' legal team to investigate this suggestion further since it seemed unlikely that a company as large as the Defendant's would not keep any records of its business transactions beyond 90 days. As a result, the Defendant revised their position and agreed to restore and search their email backup systems.

• The Defendants suggested that they apply Technology Assisted Review to determine the scope of disclosure without providing specifics on which technology would be used and how it would be deemed effective. Our client pushed back upon our advice, requesting agreement on recall and precision standards before disclosure.

• As the period in question spanned several decades, the Defendants argued that manually searching and reviewing all handwritten and hard copy documents would be excessively burdensome. They claimed that Optical Character Recognition (OCR) technology would be unreliable on documents of this type. However, Sky Discovery proposed multiple commercially available options, such as "Enhanced OCR" and OCR-assisted by Machine Learning technology, which can make these types of documents searchable. These options were perfectly proportional to the quantum of the claim.

• During the proceedings, the Claimants expressed their need for mapping photography from different time periods. The metadata associated with mapping photography is crucial for this case but is not included in the standard ILTA disclosure format. Without geo-locations, flight details, and exact time stamps, it would be impossible to review the data. We advised our clients to ensure this specific metadata is included in the document exchange format.

• The Defendants argued that gathering data from their offices in a remote region of Africa would be unfeasible and cost-prohibitive due to the absence of a stable internet connection. However, various forensic technology providers have established offices in Africa, and remote collection technology that doesn't rely on large bandwidth is readily accessible.

Impact

While our client is an experienced litigator, they benefitted from the specialist technical expertise to analyse the Defendant's proposals and requests, which in some cases, may have seemed reasonable at first glance.

Sky Discovery played a crucial role in the early stages of the case before the case management conference. As a result, our client could reasonably disagree with certain proposals that would have been costly and time-consuming for the claimants while also benefiting the defendants, who already had more resources at their disposal.

In light of PD 57AD, engaging with litigation support providers early on in the litigation process is crucial to facilitate a case's technical aspects. As demonstrated, Sky Discovery's experienced consultants can assist lawyers with complex data challenges and provide guidance on best practices for disclosure processes and protocols when dealing with opposing parties.