The actual process of looking for documents and data is secondary to the decision about how you are going to tackle the task. Much of the procedural focus in the UK at the moment – with costs budgeting and Lord Justice Jackson’s “menu option” coming – is on sizing the problem and making informed decisions about the best way to handle each stage of the disclosure process. Without some idea of the scale of the problem, you cannot begin to decide what resources you need to bring to bear on it.
By chance, First Advantage Litigation Consulting was addressing both of these problems – how you do the job and how you choose someone to help you with it – on opposite sides of the world at the same time.
Taking resource selection first, this came up at a panel called Purchasing services: When you can’t do it yourself, who do you call? at the Carmel Valley eDiscovery Retreat at which John Shaman of First Advantage was a speaker.
I was not able to attend that thanks to a conflict, and so missed the chance to hear the panel talk about the practicalities of contracting for additional services when larger projects emerge. How do you identify suitably qualified resources? What level of services do you require? Who is to provide the bodies and the equipment? Does geographical proximity matter?
I can see why First Advantage chose, or were chosen, to sit on this panel. FADV is a provider of hosted processing and review tools (I wrote about the latest release of its software recently – see First Advantage Litigation Consulting integrates audio discovery and conceptual search, and enhances analytics in Global RPM 5.0) allied with as much or as little associated consultancy as is required. Thanks to its recent acquisition of DLR Legal (I wrote about that here), it can also provide the bodies needed to perform the manual elements of the task, specialising particularly in multi-language projects.
Whilst the principles are applicable in every jurisdiction, the pending costs management regime in the UK will force lawyers to apply their minds to the costs and other implications of pursuing one route rather than another. It will no longer be enough, for example, simply to stick a finger in the air and guess at the number of chargeable hours and fee earner levels which will be required to perform each stage of the disclosure exercise.
What are those stages? That was the subject of an article by First Advantage’s London-based Adrian White on the Global Legal Post, published the day before the Carmel panel with the title Seek and you shall find.
Its starting point is that costs of litigation in common law jurisdictions are coming under increasing scrutiny from the courts and not just from the clients. Each stage of the process involves choices which strike a balance between doing as comprehensive a job as the litigation requires whilst keeping the costs to a minimum.
Adrian White’s article starts with the need for a data map and traverses the stages thereafter from collection through to review.
If one were to take a single sentence from it, it is this one:
the earlier that a business is in possession of the facts, the easier it is accurately to evaluate the strength of a position and make decisions on whether to fight on or seek settlement.
If this appears obvious when written down like this, it has to be said that it does not appear to be the driving consideration of most litigation. It is from this early analysis that one gets a feel for the scale of the problem quite apart from the merits. But that assessment of scale leads, in turn, to consideration of the different ways of skinning the rabbit, including primary decisions like whether to do the work in-house or send all or part of it out – the subject of the panel at Carmel in which John Shaman took part.