We've already discussed your disclosure obligations and how to identify the potential sources of relevant documents if you become involved in litigation.
Once all the possible sources of relevant documents are identified, you then must determine the extent of the searches you need to undertake. It is important to record, or map out, the steps you have taken and the provenance of extracted documents. Ultimately, extra documents can then be uploaded to a specialised document management system for legal review and disclosure.
What searches do you need to undertake?
The extent of the searches you should undertake in order to satisfy your disclosure or discovery obligations depends on what is reasonable in the circumstances. You are not required to expend unlimited resources searching for every relevant document that may or may not exist.
Under the Federal Court Rules 2011 (Cth) the disclosure obligation requires a "reasonable search" and allows you to take into account:
- the nature and complexity of the proceeding;
- the number of documents involved;
- the ease and cost of retrieving a document;
- the significance of any document likely to be found; and
- any other relevant matter.
Depending on the circumstances, the above factors may limit the searches required. For example, after weighing up these factors it may become clear that documents in locations such as archived files, back-up tapes and deleted emails need not be reviewed because of the time and expense involved, as well as the relative improbability of finding any documents of relevance. As we'll see below, it is prudent to keep a record of the potential sources of documents and the reasoning process for limiting any searches, as well as the searches undertaken ‒ or even confer with the other party with a view to reaching an agreement on your search strategy.
Similar criteria have been applied by the Queensland Supreme Court in State proceedings, in particular, requiring disclosure be done in a way that will facilitate the expeditious resolution of the real issues in the proceedings at a minimum of expense.
As part of this, you should consider applicable Court requirements to create plans and protocols for disclosure, which are generally aimed at reducing document management costs and ensuring proceedings are resolved expeditiously. For example, Practice Direction number 10 of 2011 of the Supreme Court of Queensland requires that, prior to disclosure, the parties are to confer with a view to agreeing on (among other things):
- a document plan to address the management of documents in the proceeding; and
- a document management protocol.
There are similar requirements to create a document plan (called a discovery plan) and protocol in the Federal Court Practice Notes CM 5 and CM 6 following certain orders (e.g. an order for discovery to be given in an electronic format).
In a document plan you may seek to agree with other parties:
- the issues in the pleadings for which disclosure of directly relevant documents must be made;
- the personnel who are likely to hold relevant documents and whose electronic and hard copy files will be searched;
- any keyword searches to be used to limit the number of documents to be reviewed;
- the date range of documents (particularly emails) required to be reviewed; and
- any other processes the parties should undertake to limit disclosure, such as de-duplication of emails.
This is a process that should be done carefully, especially as failing to identify and disclose pertinent documents may, among other things, affect the quality of your case by leaving gaps in the material that can be adduced at trial.
The extraction and delivery process
After completion of the document searches, you should consider the process of extracting the documents from those sources and making them available for legal review.
For hard copy documents, this involves pulling the relevant documents from the sources, transporting, scanning and uploading digital copies to an electronic database for legal review. If you are not undertaking electronic disclosure, it may still be prudent to process these documents electronically.
Extracting electronic documents is more complicated, as they are volatile and may need to be identified, collected and handled using specialist tools. If it's not done correctly, you may:
- change or remove the metadata of the document and affect its evidentiary value and integrity; and
- remove the possibility of de-duplicating documents, such as emails, resulting in more documents to review and increased cost.
For these reasons, extraction of electronic documents will usually be managed by technical specialists, who may be available from your external lawyers or other service providers. At Clayton Utz, for example, our Legal Technology Services group specialises in information management and case support services. If these specialists are engaged, internal counsel's role will generally be to assist them locate the relevant sources through their knowledge of how documents are stored.
When collecting hard copy or electronic documents we recommend that you collect whole "stores", such as physical folders, electronic folders or file servers and mailboxes rather than attempt to search or cherry-pick documents from their original location. Although this may result in higher costs early in the process, it is both preferable and more efficient because:
- you are unlikely to know precisely which documents will be required at the outset of a case;
- it reduces the risk that documents may be amended, lost or mistakenly destroyed;
- collecting whole stores will save having to go back and disturb employees a second time if further documents are required; and
- the context of the documents may assist in determining their meaning and purpose.
Because the process of document extraction involves pulling documents from various sources, it is essential to map the documents as they are extracted. Essentially, this involves keeping a comprehensive record of the steps taken in searching and extracting the documents. Document mapping allows internal and external counsel to keep track of the provenance of documents, such as:
- the individual each document came from (sometimes referred to as the custodian of the document);
- where the document was located in the hard copy or electronic files;
- the date on which the document was extracted; and
- which searches were performed to locate it.
Once document extraction is underway, the information in the document map is vital in determining whether all identified document sources have been covered off or if gaps exist.
Where a document is identified as a document of special interest in the proceeding, the document map can be used to identify surrounding documents which may also be significant or give the document context.
Document mapping also ensures that the relevant custodian of the document is known in the event that the document needs to be adduced in evidence.
Document management systems
The disclosure process will be improved through the use of a quality document management system. It is relatively standard, particularly in complex litigation, for parties to have dedicated document management systems that may be used for a variety of purposes in litigation, including to complete disclosure. This system will generally be different from the organisation's standard filing system for its day to day business affairs and will have specialised functions specifically tailored for use in litigation.
Proper document management will minimise the time and cost of disclosure and allow further interrogation of the documents, which may assist throughout the dispute (eg. in the creation of document bundles for witnesses, document chronologies and trial bundles).
Disclosure often forms a substantial part of the cost of litigation. It can also be highly time-consuming for lawyers, both internal and external, and other personnel. Accordingly, efficiency and effectiveness in disclosure is extremely important.
The steps set out above will help you to properly manage the document extraction process, which will create a sound foundation for the efficient completion of disclosure.
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