It never rains..

By | 10th March 2010

It happened to me again this morning! You will all be familiar with the scenario. You wait in the cold for many minutes for the one bus which will take you to your destination and having got thoroughly miserable and frustrated, not one but two buses turn up together.

It seems like that in the world of e-discovery!

In the last week, the judgment in Goodale v Ministry of Justice has been published and, excitingly, so has the draft of the Technology Questionnaire, currently in a subcommittee of the Rules Committee.

In one place and at the same time, Master Whitaker has moved the discussion on e-disclosure to another level. The judgement is well worth reading (and is only 28 paragraphs long) but the Master encapsulates what many practitioners have long realised was the problem with e-disclosure and then comes up with a solution!

The Master says that defendants

must also complete the questionnaire in the schedule below as a means of providing the claimant and the court with the necessary information in a structured manner, should there be any further application for directions on disclosure.”

The Senior Master also makes it clear that parties to litigation should take an incremental approach to e-disclosure. He says in paragraph 28

I think the proper thing to do is to start with a fairly crude search and then, if the numbers are within reason, to work with experts to render the corpus of documents down and de-duplicate them and then move on to the review stage.

This approach resonates precisely with the approach Millnet has been advocating for some time now. It is clear that not to look at electronic documents is NOT now an option. Equally, it is clear that incurring a huge amount of expense at the outset or, worse still, entering into a long term hosting commitment too early, is not the way to proceed.

This week has seen two cases come into the office, both of which suffer from the same problems identified by the Master. Both cases have a potentially huge amount of data but both have relatively small sums of money at stake.

The approach in Goodale is tailor-made for them both and will surely have wider application as time goes by.