E-disclosure Protocols and Quality Control Processes

Any e-disclosure exercise needs to be proportionate, and it would be wholly disproportionate to undertake multiple QC phases. In fact, you would need to review a population of 50,000 documents in its entirety five times over, to achieve a 99% certainty that every document is tagged correctly.

In the case of Digicel (St. Lucia) Ltd & Ors. v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch), Mr Justice Morgan stated that the rules do not require that no stone should be left unturned, even if a smoking gun is not found. With this in mind my concern would be with privileged documents mistakenly being disclosed.

We know from the above that in an e-disclosure review of 50,000 documents with a single QC phase, statistically there will be 39 documents mistakenly disclosed. Working on the assumption that 1% of documents in a review set are privileged, means that in this case we have a 39% chance of inadvertently disclosing a privileged document. If our reviewers were operating at 90% accuracy instead of 95% across a population of 100,000 documents, then statistically we will end up not just disclosing one privileged document but three - a frightening prospect!

There are two ways to tackle this: taking further steps to reduce the chances of incorrect disclosure, or taking steps to make it easier to ‘claw back’ incorrectly disclosed documents.

Part 31.20 of the CPR states ‘Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.’ Meaning there is no automatic protection and right to claw back incorrectly disclosed material. The Technology and Construction Solicitors’ Association have published an e-disclosure protocol (www.tecsa.org.uk/e-disclosure). Part 7.2 of this gives suggested wording for direction in place of CPR 31.20, which is much more collaborative and, critically, states that there is no ‘waiver of privilege’ in the case of inadvertent disclosure.

Ideally though, parties would never have to rely on directions such as this. While it may not be possible to guarantee 100% certainty, steps can be taken to get as near to this as possible. In my opinion, in cases where the risk is particularly high, it is worth putting in place such measures.

The main risk factors to look out for are: high numbers of documents, large distributed review teams, drafted review teams who are not involved in the case on a day-to-day basis, complex issues, multiple parties and cases involving firms of lawyers or professional indemnity. For a case involving one or more of the above, it may be worthwhile putting in an additional QC phase with the sole objective of checking the disclosure list for privileged material, as a final check prior to exchange.

For more information on electronic disclosure, digital forensics, or CCL’s other products and services, call us on 01789 261200, email edisclosure@cclgroupltd.com, visit www.cclgroupltd.com, or check out http://www.cclgroupltd.com/e-disclosure.

Author: Author is an e-disclosure specialist at CCL Group - the UK’s leading supplier of electronic disclosure and digital forensics consultancy, including: computer forensic analysis, mobile phone forensics and digital investigation service, for more information visit www.cclgroupltd.com

Nathan is an e-disclosure specialist at Ccl Group, including: computer forensics, mobile phone forensics and digital investigation services.