Why do we still manually list documents?
The explosion of electronic information requires us to look at changing traditional practices if the discovery process is to more proportionate and cost effective.
Spending considerable time and effort constructing a manual list of documents adds unnecessary expense and burden to the discovery process. As the volume of electronic information increases substantially, manually listing documents will continue to be a laborious and costly part of the discovery process.
But it doesn’t have to be this way. Documents do not need to be manually listed.
I am not saying to do away with listing documents, but remove the timely and costly exercise of manually listing them.
Listing information is already there
By collecting documents in their original native application (eg, word, excel, outlook), the metadata (data about the information within the electronic files) can easily be extracted and used to populate the list of documents.
Utilising the metadata contained within the electronic files can help remove the expensive and time-consuming exercise of manually listing documents. Any manual listing should only be required if documents are missing useful metadata.
Using the metadata to populate discovery lists will not suit every matter, but with almost all information now originating in an electronic form, the option should at least be explored.
Move away from paper and scanning paper
Many firms continue to spend considerable time and money scanning and listing documents. The problem is when firms collect (or receive) information by printing electronic information, scanning the paper documents, manually listing the documents and then producing them electronically.
This process is adding unnecessary steps to the discovery process as the information could have been captured from the information in its native electronic file format.
Historically, in a paper-based world there was no alternative to manually listing documents. Today, though, documents existing in paper are usually straight off a printer and will be stored electronically elsewhere. Paper will still play a part for many organisations, but these instances will become increasingly rare as the volumes of electronic information continue to increase.
Working with paper or scanned images makes it difficult to accurately search and review the documents, which will prevent a thorough interrogation of the information. A scanned image is little more than a photograph of the actual document.
Rules endorse removing manual listing
The High Court discovery rules (which have been in place since February 2012) require parties to investigate ways to remove some of the unnecessary costs associated with listing documents. The rules encourage parties to use native electronic versions of documents together with the extracted metadata from native electronic documents instead of manually listing documents
The rules themselves state:
To reduce unnecessary costs of listing documents, parties are encouraged to —
a) use native electronic versions of documents as much as possible; and
b) use the extracted metadata from native electronic documents, instead of manually listing documents; and
c) convert documents to image format only when it is decided they are to be produced for discovery; and
d) if document images are to be numbered, only number those images if they are to be produced for discovery.
When it comes to working through the Discovery Checklist, parties should assess if manually listing documents is proportionate. If it is not, or may add unnecessary costs to the discovery process, then parties may use the metadata to identify the documents and populate the list of documents.
Discovery is more than just a list of documents
The discovery process should be about devising a method to get to the important information and doing so in a way that is quick, cost effective and accurate. It should not be restricted traditional practices that involve the time consuming and costly practice of scanning and manually listing documents.
On many occasions a manual list struggles to provide any true value – especially if there are inconsistencies in the document descriptions. The level of detail to fully interrogate documents is seldom identifiable in a list – especially with the limited document descriptions. The list with document descriptions is limited with most descriptions being subjective and differing from party to party.
A list (or schedule) of documents may be beneficial, but it is the document or the electronic file(s) that is increasingly becoming the most important factor. As long as each document has a unique number and is searchable (or preferably provided in its native electronic file format) that is all that is required.
These observations probably will not please those who make a living out of scanning and coding documents, but it is important to look at more effective options to improve the efficiency and reduce the cost of the discovery process. Removing the requirements to manually list documents is a start.
With the advances in technology, significantly more of the discovery process can be carried out more effectively and efficiently, freeing lawyers up to focus on the documents that matter most.
Capturing information in its native electronic file format and removing the need to manually list documents will help reduce the unnecessary cost and burden of your discovery process.
Andrew King is the founder and strategic advisor at E-Discovery Consulting (www.e-discovery.co.nz), where he manages the entire discovery process or provides independent advice on any aspect of it. Andrew can be contacted on 027 247 2011 or firstname.lastname@example.org.
Last updated on the 17th March 2016