In-House E-Disclosure Teams Should Not Be Vilified

• Published date: 14 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, IT and Internet, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Cooley LLP
• Author: Joy Thornhill

Cabo Concepts Ltd v MGA Entertainments (UK) Ltd & Another¹ has caused much agitation among litigators and e-disclosure professionals. Just three weeks before the start of the trial in this case, the defendants informed the court that they had missed approximately 84,000 documents² due to errors in the data collection process underlying their disclosure. This process had predominantly been carried out by the defendants' in-house IT team. The repercussions for the defendants were substantial: the trial was adjourned for over two years; the defendants were ordered to produce detailed evidence as to the cause of the failings; the disclosure exercise had to be redone with an independent e-disclosure provider; and the claimant was entitled to recover its costs thrown away on an indemnity basis.

On the face of it, the case appears to be a warning against conducting e-disclosure in-house. However, properly administered, the use of in-house technology and teams can be highly effective and efficient. Here are our key pointers for companies with in-house capabilities to ensure the smooth running of the disclosure process.

Be flexible with in-house technology

Cloud systems have allowed companies to invest in cost-saving and efficient technology in which they control their own data without the headache of physical components. But having in-house software is only half the story; you will also need a team well-versed in how to get the best from the system and with full understanding of any restrictions. Keep in mind, for instance, that the software may well be capable of what you are asking of it but if your licence does not cover a particular aspect, you may not get the expected results.

There is no single 'best' or 'easiest' e-disclosure technology. The most appropriate technology for any given case will depend entirely on the case's characteristics. In-house teams should ask themselves not whether they could do something, but whether they should do something.

External consultants need not be avoided altogether, even where there is pressure to keep control of data in-house. They can provide supervision and guidance without needing the keys to your data.

Expect questions

You should expect to be questioned in detail by your legal team when handling any aspect of the collation, export or hosting of data. They need to understand the technical process to be able to guide you and to know when to challenge you.

In the past, there has been a tendency to keep legal and...