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The disclosure exercise in any piece of litigation can be time consuming and expensive and parties can be reluctant to incur these costs too early. In multi track claims, parties are usually required to file a Disclosure Report, Costs Budget and often an Electronic Documents Questionnaire (EDQ) before the first CMC.
Whilst the Disclosure Report and EDQ may assist parties to scope and cost an eDisclosure exercise, they also encourage parties to agree on various points before they may have had proper access to their data and a real opportunity to accurately cost and budget for a disclosure exercise.
Here, our guest blogger, Dominic Tucker, Senior Consultant at Anexsys Ltd, considers factors which determine the cost of a disclosure exercise, and discusses some of the solutions which allow costs to be efficiently managed and reduced.
The problem, in part, may be caused by the upfront nature of disclosure costs. In order to gain access to documents, data must be processed and uploaded to a review platform, incurring the most expensive disbursement of a disclosure exercise. It is therefore understandable that a party may leave it until the last minute, pending possible settlement, or otherwise be reluctant to incur these fees until strictly necessary. There is a risk in leaving matters too late however, as the opportunity to properly define a reviewable set of documents and make defensible exclusions may be lost.
The costs of disclosure can be exacerbated where keyword terms are agreed between parties before they have had an opportunity to sample and test their responsiveness. Even the most carefully crafted list of terms will contain one or a handful of terms which will return a high volume of totally irrelevant documents, unnecessarily increasing the cost of reviewing documents.
It is not all doom and gloom though; there are a number of solutions which can help, including:
Early Case Assessment methodologies help to manage costs by allowing parties to access data at an earlier point in proceedings, providing the opportunity to better define reviewable sets of documents and mitigate future data hosting and document review costs. In cases where fast access to documents is required, including emergency injunction proceedings, an ECA methodology can also assist.
Search Term Sampling can reduce costs by helping parties to better define the reviewable set of documents and eliminate the unnecessary review of irrelevant documents. Sampling can be effectively deployed as part of an ECA or standard approach to disclosure.
Practice Direction 31B encourages parties to consider the use of Data Sampling, which can significantly reduce the cost of a disclosure exercise.
CPR Rule 31 allows the court to dispense with standard disclosure and make an order for disclosure on an alternative basis.
Technology Assisted Review (Predictive Coding) and Analytics functions are amongst the most high-profile technological solutions which can assist to reduce and manage the cost of a disclosure exercise.
Predictive coding systems can assist to reduce costs by eliminating the review of irrelevant documents and allowing for relevant documents to be captured more efficiently.
These systems apply complex algorithms which, based upon their analysis of review decisions, identify similar documents to be prioritised for review. In doing so, they limit the review of irrelevant documents and enable relevant documents to be captured as efficiently as possible, thereby improving the recall and precision of a review exercise.
See Dominic's previous post Predictive coding: Is technology the answer to disclosure?
Analytics functions introduce a range of functionality which can help to manage and reduce costs but which also assist with the interrogation of data, including the following:
Document profiling can help to reduce and manage costs by allowing classes of documents to be identified and prioritized, de-prioritised or excluded from review. Such processes have a similar outcome to analytics functionality, but without the /GB cost.
A more detailed version of this analysis is available to Lexis®PSL Dispute Resolution subscribers here. Sign up for a free trial here if you are not a subscriber and would like to read that full analysis.
Dominic Tucker is a Senior Consultant at Anexsys Ltd, a leading provider of outsourced eDisclosure and litigation support services to law firms, corporations and government departments.
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