Getting Control in an e-Disclosure Case

IT Group was instructed in a litigation matter that became a David and Goliath style case.

A niche engineering business from Northern England, found themselves up against it when a relatively minor dispute escalated.

The company had instructed their solicitors, a local firm to help deal with a relatively minor commercial dispute with a large US based business. This involved an alleged non-payment of deferred income but, as this case ran its course, they were hit by a further claim alleging that they had broken a non-competition agreement between the two companies.

Because of previous agreements, this became an IP case for claimed IP theft and breach of a commercial contract not to compete. The claim was that the original design documents had been used competitively, in breach of the agreement. The UK company now found themselves facing a dispute headed by a large US law firm and assisted by an international e-Discovery business.

From the outset, the US law firm sought clarification concerning the electronic documents that were available for different aspects of the case. They demanded that certain defined searches of the electronic documents should be carried out. This was easier said than done because large numbers of the electronic documents were stored on a wide variety of different media. In addition, to provide searches of this type would require a document management system, which the client did not have.

When this became clear the US firm obtained an order to capture the electronic documents, although they were not allowed to interrogate them. However, they were able to audit the search process and this in itself became a source of dispute, as the US firm were not happy with the procedures being carried out and the results obtained. This rapidly became a further weapon in the dispute.

It was at this point that IT Group was recommended to the solicitors involved and were able to start addressing the issues raised by the e-Disclosure.

A review of the whereabouts of the potential documents uncovered a wide range of sources. These included PCs, old tape backups from servers, old CD and DVDs and imports of mailboxes from old email servers. Further documents were located by IT Group from these sources.

The electronic document collection produced in excess of 2 million documents, which comprised of the ubiquitous emails, but also CAD drawings and designs, with various images and photographs, which needed to go through an OCR (Optical Character Recognition) process (electronic conversion of images of typed, handwritten or printed text into machine-encoded text). These had gone backwards and forwards between the company and its customers and so key dates were agreed, which culled the document set down to some 40,000 documents.

A set of search terms was agreed and applied, but these delivered fewer than expected results. This caused the US lawyers to challenge the number of documents that had been found. They asked for information about the searches, for example, the number of documents searched, a list of the document repositories, the number of documents found within certain date ranges and more. Pressure was being applied by the other side, demanding clarification of exactly what documents were available for certain aspects of the case. Having found additional documents, IT Group now responded to these search requests and audit procedure requirements.

As the e-Disclosure process had itself become contentious and a potential weapon in the course of the litigation, IT Group carried out the keyword search requests and provided the document numbers to the other side. Each request was now signed off by IT Group with an Expert Witness Statement, confirming that the search had been properly carried out.

In this way, IT Group was able to establish that the documents had been searched properly and that, even if the other side had expected more documents, these just did not exist. The case now moved forward.