Care is required when outsourcing e-disclosure obligations, says expert

Out-Law Analysis | 07 Mar 2012 | 8:00 am | 3 min. read

OPINION: E-disclosure is a revolution sweeping through the litigation process and the trend is towards greater and greater outsourcing. But a recent decision in the Technology and Construction Court highlighted how vital it is for organisations and their lawyers to retain control over the e-disclosure process.  

Without proper control a court can rule not only that more information should be disclosed but that one party to a law suit has to pay significant costs to the other.

The best way to avoid this problem is never to outsource the whole process to third parties and to make sure that the process is managed by senior people that you trust who have significant litigation experience. They should be in full control of what is becoming an increasingly complicated process.

Litigation is getting more interesting and more challenging by the year because electronic communications can provide us with a more complete picture of what actually happened at any given time. If there is a dispute about what has happened, there is almost certainly an email trail that will illuminate the issue.

However, the huge pool of data that organisations now have access to means that identifying the 'disclosable' or relevant documents from the mountains of irrelevant and potentially sensitive data is often a difficult and expensive exercise.

The process of identifying the disclosable documents from the morass usually comprises a number of different stages. The first is to identify the locations within an organisation where relevant documents are likely to be stored. This is often a part of the process that is overlooked. However, the impact on a party's credibility when they are subsequently ordered to disclose documents from a previously unmentioned location can be significant.

Once the data has been harvested it is normally processed by a third party data processor. At this stage a number of electronic filters or searches can be used to exclude irrelevant material, although these should be agreed with the other side in advance.

There are, however, limitations on what the electronic filters and searches can do and the parties are unlikely to agree to searches which are too narrow. This means that a manual review of the remaining documents is going to be required in most cases.

The current trend is for the manual review exercise to be outsourced, usually to firms based in places such as India or South Africa. These firms can offer legally qualified document reviewers who are paid not much more than the minimum wage. In large complex litigation involving petabytes of data the cost benefits of outsourcing the document review process can therefore be huge.

A recent case involving West African Gas Pipeline Company Limited (WAGP) and Willbros Global Holdings highlighted the consequences of not doing this properly.

WAGP not only had to repeat its document review exercise because it had been flawed but was ordered by the High Court to pay some of the costs incurred by Willbros in dealing with the disclosure it received.

To avoid similar censure by the Courts it is essential that any third party document reviewers are properly briefed and monitored. This first requires the legal team to have a full understanding of the issues arising from all the parties' cases and to be able explain these to the reviewers in a way that can be readily grasped.

The briefing process should be about getting the reviewers up to speed with the case – a few days spent by the legal team with the reviewers on site running through example batches of documents is therefore usually time well spent.

Once the review is underway there should be an escalation procedure so that reviewers can raise queries in respect of particular documents. It is also advisable to put in place a quality assurance process which has the lawyers sampling batches of documents so that checks can be carried out to determine whether the briefing process has been successful.

Similarly, daily briefings with the reviewers and lawyers should be undertaken as they not only allow issues to be dealt with promptly but they allow the legal team and the client to stay involved in the process. Ideally, any feedback should be given in a plenary session so that queries are dealt with in front of all the reviewers and a consistent approach applied.

As this recent case shows, whilst it may be tempting to outsource as much of the manual review process as possible, that may not prove to be cost-effective if the third party reviewers get it wrong.

Andrew Shelling is a construction law expert at Pinsent Masons, the law firm behind Out-Law.com. Pinsent Masons represented Willbros Global Holdings in the case discussed in this piece.