17 July 2007

Cyberspace August 2007

How far can you go?

Given the proliferation of electronic documents and emails in modern litigation, the question of how much effort is required or possible in discovery is constantly raised. For example, in July 2007 the Sydney Morning Herald reported that the investigation into Dr Haneef in relation to alleged terror incidents in the UK resulted in 30,000 documents in a very short time.

The amount of effort to be expended in civil proceedings was raised in Galati v Potato Marketing Corporation of Western Australia (No 2) [2007] FCA 919 (15 June 2007). The PMC has more or less a monopoly over potato marketing in WA and has extensive powers to enforce compliance. There were various proceedings between the parties in the Federal Court (Order 15 deals with discovery). The PMC had 11 full time employees and apparently 100,000 documents to search in relation to some categories of documents that Galati requested be discovered.

Consider this statement in the judgement: "As to the documents referred to in category [12(c)], Mr Dawson said that "there would not have been many documents created in this category since January 2003". However, he said that, in order to find those documents, "all documents" would need to be reviewed... Mr Dawson said that he estimated that it "could take a person a number of weeks to properly conduct a search" of "all documents"."

His Honour concluded: "... the evidence of Mr Dawson demonstrates that he appears to have misapprehended the nature of the search which needs to be carried out under the Rules, namely, a reasonable search. "

This case is a useful vehicle to consider electronic discovery generally. The observation is frequently made that only a few percent of all discovered documents are truly relevant to determination of the issues between parties. Vast bands of junior solicitors and law students are often thrown at inspection and categorisation of client documents, and of course, the costs are enormous. With the proliferation of electronic documents will we see a proliferation of costs in relation to e-discovery?

E-discovery is a rather overrated hot topic at the moment, but it does raise real issues for practitioners. When advising your clients on their discovery obligations you may need to prod them in relation to data sources such as file servers, home computers, work computers, private email, backup storage on and off site, and probably take a draft statement from their IT staff or contractor.

Eventually you may end up with a vast pile of information. Much of it will have some general categorisation, but how do you filter it? This is something for professional advice, but you should be aware that free-text searching products exist that go well beyond simple searches for words and phrases, or even basic and/or searches.

Many of these tools allow you to teach them concepts, or at least create thesauri, so that they understand that disk=disc, and "The Manager" = "John Smith". Some go much further, understanding the relationship between the date of the document according to the computer, and date references in the text (so "next Thursday" can mean a real date). You can state that part of the corpus is "more correct" than another part, or specify languages used. Some also interpret numbers in the text so that ranges of money amounts, for example, can be located.

There is also discreet hardware, such as the Google Mini. For USD$3,000 you get a computer that can search up to 50,000 documents (and will scale to millions) located on web servers and file servers. There's also the Google Search Appliance, and both of these understand hundreds of file types.

Most of these products are not a total solution in themselves, and there are a number of litigation support providers who have their own products and expertise to bring together the various elements of the solution. Just make sure you control them and ensure appropriate orders are made to avoid everyone except your client making a profit.

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