Data Exchange Agreements in Litigation – the Impact of the Woolf Reforms

It has been common practice for several years, particularly in large cases,for solicitors to exchange documents in electronic form. This has assisted themanagement of large numbers of documents and expedited the search for andretrieval of information central to the issues in the litigation. In addition topleadings and lists of documents, images of documents are frequently exchanged.What is relatively new is the development of agreements dealing purely with thetechnical aspects of exchange. In this article I examine the issues which needto be addressed in these agreements in order to achieve technologicalcompatibility and optimum value from litigation support databases.

The use of such agreements or protocols was raised by Lord Woolf in both hisinterim and final reports, Access to Justice. Lord Woolf referred to thepossibility of setting up standard formats to encourage opposing parties toagree on compatible systems and, where possible, to share the costs of settingup these systems. He envisaged that these formats would be based on the OfficialReferees Solicitors’ Association Protocol (now known as the TeSCA Protocol) (seebelow) and that they would be used across the civil justice system. In addition,the recently published Civil Procedure Rules 1998 (CPR) contemplate the activemanagement of cases by the courts. This includes at CPR 1.4(2)(k) `making use oftechnology’ (although `technology’ is not defined).

Whilst there is no express reference to the use of computerised litigationsupport systems in the CPR, it is anticipated that at case managementconferences (particularly for multi-track cases), solicitors will have to dealwith a wide range of issues relating to the management of the case, includingthe use of technology. The issue is amplified in the draft Commercial CourtGuide at Practice Direction I:

4.1 The use of information technology at trial is encouraged where it islikely to save time or costs or increase accuracy.
4.2 Where information technology is to be used at trial the same system shouldbe used by all those parties who wish to use information technology, andprovided to the Court. In a heavy case, the Court may wish at a stage as earlyas the Case Management Conference to discuss with the parties the question ofdirections on the use of information technology.

Finally, the consultation paper issued by the Lord Chancellor’s Department inSeptember 1998,`Civil.justice – Resolving and Avoiding Disputes in theInformation Age’, states (p 29): it should be possible to establish and evenrequire that these [litigation support] systems correspond to a set of standardsand formats, which could be articulated in a number of protocols appropriate fordifferent classes of case. It also suggests that these could follow the exampleof the TeSCA protocol, which can be found on the Court Service website. It is aclear and easily comprehensible document whose guiding principles are equallyapplicable to all areas of litigation.

From our experience on various cases, we at Lovell White Durrant havedeveloped an in-house checklist of practice points and a draft standard-formagreement for exchange of lists, images and/or databases, which helps us toensure the smooth exchange of information and compatibility with our ownlitigation support software. Some of the issues raised in this process, and ourapproach to them, are discussed below.

Data Exchange Agreements

The principal aim of any data exchange agreement is to facilitate exchange ofinformation by ensuring the compatibility of the parties’ respective systems. Itis therefore important that these matters are raised as early as possible in thedispute so that documents and data are not created in incompatible formatsrequiring time consuming restructuring. The technology requirements of each caseshould be considered and discussed with the other parties’ representatives at anearly stage, and certainly before the first case management conference; theparties could then formalise or embody the arrangements in a court order.

The importance of detailed discussions on technology can be seen from TheAmerican Endeavour Fund Limited v Arthur Trueger and others (Royal Court ofJersey, 23 January 1998), where a dispute arose over the meaning of the phrase`inspection of documents to be given by CD-ROM’ in a court order. The disputearose because of the conflicting expectations of each party of the facilitieswhich should be provided by CD-ROM. These were not spelt out and agreed beforethe court order was drawn up. The Court ordered the parties to provide evidenceof what their expectations were before it could decide if there had been anybreach of the order. The case settled before a ruling was given.

In order to facilitate discussions such as these, each party should appoint asolicitor and, if possible, a technical support representative, to deal withtechnical issues. It is very important, particularly where a large legal team isinvolved, to establish one line of communication. The role of theserepresentatives will include settling the data exchange agreement at the startof the case, monitoring its implementation and dealing with any technical issueswhich arise as it proceeds.

Scope of a Data Exchange Agreement

All documents which have been created electronically and are to be exchangedin hard copy between the parties can also be exchanged electronically. Thesewill include statements of case, witness statements, affidavits, lists ofdocuments, skeleton arguments and so on. There should be no controversy overthis (the old RSC Ord 66, r 3(4) provided for this) but, if necessary, thecourts are likely to order this under their general case management powers (CPRr 3.1(2)(m)).

General Considerations

As a general rule, the format of documents to be exchanged electronicallyshould be as simple as possible. The use of advanced features such as automaticparagraph numbering and tables can cause problems on conversion. Agreementshould be reached (with the assistance of the named technology representative)on how to make these documents compatible. This will be particularly importantin relation to documents such as Scott schedules, which are not usually preparedon word processing software.

Abbreviations for names of individuals and organisations and any otherspecific acronyms or terms should be standardised and agreed in order tofacilitate later searches. The format for dates also needs to be standardisedfor compatibility (eg DD/MM/YYYY), as does the format for names (eg Peterson-JA).

Word processed documents should be exchanged on a standard format, such as3.5 @ floppy disk, in 1.44MB MS-DOS. The lawyers supplying the document shouldtake the simple precaution of checking that the correct document is being copiedto disk. A formatted ie clean disk should always be used as these have beencleared of any other information. Compression software such as PKZIP may be usedto re-write and compress data files or span multiple disks if required so thatthe information takes up less space.

Disclosure and Inspection of Documents

There are various ways in which information may be exchanged in electronicform in connection with disclosure and inspection. The individual requirementsof each case should always be considered. The CPR rules on disclosure in fastand multitrack actions provide that parties may agree in writing to dispensewith or limit standard disclosure (CPR r 31.5(2) and (3)). This would also be aconvenient time to document any use of computerised litigation support: it canbe agreed that the documents to be disclosed will be imaged and copies will beprovided by way of CD- ROMs of images rather than or as well as hard copies. ACD-ROM can store approximately 10 – 15,000 electronic pages, which is roughlyequivalent to 50 lever-arch files. Hard copies are made by printing from theCD-ROM onto a conventional word processing printer. The CD-ROM itself can becopied after creation of the initial disk. The CD-ROMs can also be written insuch a way as to permit use by firms who are not using data-bases, provided thatthey can play CD- ROMs on their computers.

Pagination

It should be agreed that each image should be electronically paginated (theoriginal document remains unmarked) as it is scanned. If there is no coding, thedocuments can only be retrieved by the electronic page number. It should also beagreed that an electronic text file should be created which permits movementfrom one page to another, otherwise than sequentially. An index with pagenumbers can also be created to locate particular documents either by the firmproviding the documents or by the recipient firm.

If litigation support software is being used, this can readily create theList of Documents with or without linked images. It may also be possible for theparties to provide more information in their respective Lists of Documents thanis required by the CPR, in order to facilitate search and retrieval.

Format

Unless parties are using the same software, it may be convenient to agreethat Lists will be created in `ASCII text’ (as opposed to a conventional wordprocessing file). This is a particular format which allows the agreed codes tobe entered into the correct fields using agreed standard separators. Provisionof the List in this form should not be controversial as it can be read on thescreen and printed off in standard text and is widely used and available. Ifadvance agreement is not obtained, conversion problems can arise, which slow theprocess of incorporating another party’s data. It should be noted, however, thatLists of Documents created in a spreadsheet format are readily incorporated intolitigation support systems, provided coding is adequate.

Scanning

It can also be agreed that the documents will be scanned and the imageselectronically linked to the entries in the List of Documents. Images are storedon a CD- ROM format in so-called `Tagged Image Format Files’ (TIFFs). In orderto exchange a database consisting of codes linked to images, the codes should beASCII text format, with compatible separators and TIFFs with the appropriatecross reference file. The number and types of fields need to be agreed as wellas abbreviations and formats.

Attachments

It is important that the parties agree a common method of identifyingattachments to documents. Without this, when the documents are scanned andcoded, they will be paginated automatically and the page numbers of anattachment will therefore follow consecutively from the document to which it isattached, but it may not be possible to identify where the attachment starts.The best way to deal with this is with a specific attachment field which iscompleted with the attachment document number during coding. The attachment IDnumber ties together these separate but related documents.

Identification

It is useful to be able to see on the face of the imaged (and indeed the hardcopy) document not only its discovery number, but some identification of thedisclosing party. This can easily be added, for example by means of the relevantinitials, when the documents are paginated during scanning. It is also sometimespossible to have a specific field dealing with the source of the document.

Quality Control and Cost Sharing

Each party’s choice of scanning and coding bureau should be discussed inorder to ensure that its quality control procedures are adequate. It may beappropriate to exchange test data before full exchange. There could be costsimplications, delay to the litigation timetable and possible prejudice to oneside if the data produced by the other side is inadequate.

If any sharing of the costs of the scanning and coding process iscontemplated to avoid duplication of data conversion costs, provision for thisshould be included in the data exchange agreement before the work is started. Itis important that costsharing agreements should be embodied in a court order,particularly if one party has a significantly greater number of documents todisclose (see Gruppo Torras SA v Al Sabah (No 3) (1997) The Times, 13October).

Data Corruption and Viruses

Where documents have been received on disk, they will need to be checked toensure that they are complete and have not been corrupted in any way (whetherduring the scanning process or otherwise). It is just as important to check thecontents of the CD-ROM as it is to verify copies of documents provided in thetraditional manner.

In addition, there may be a risk that the CD-ROM contains computer viruses orother undesirable programs. The risk of this changes from month to month and itis therefore important to ensure that anti-corruption procedures are up-to-date,and that they are rigorously followed. Anti-viral software should be constantlyupgraded.

Operational Issues

Issues relating to exchange of technology can be time-consuming, particularlywhere large teams are involved, and it is also important that proper proceduresare followed to ensure the correct material is exchanged, no additional(particularly confidential or privileged) material is inadvertently included andthe data is not corrupted.

Someone from each team should be assigned the responsibility of ensuring thatall media (diskettes, optical disks or tapes) are clearly and unambiguouslylabelled with the names of the sender and recipient, identifying the action nameand version of the compression utility (if any) (referred to above). Only newformatted disks should be used as old disks may contain additional materialwhich can be extracted.

All media should be accompanied by a note describing each item of media/fileby reference to:

• description
  
• format
  
• date to identify latest version
  
• file size in megabytes (MB)
  
• number of records
  
• the file name in the directory listing.

In addition, each party should maintain a record of what data is sent andreceived, such logs to be made available to other parties on reasonable request.Each party should:

• maintain a precise record of the date on which the data is sent and received
  
• make backup copies of all data sent and received
  
• check outgoing media for data loss or corruption and ensure that no incorrect data goes out
  
• be wholly responsible for detection of viruses on incoming media
  
• if conversion is required between recommended formats, there should be clear agreement (to be discussed at the initial meeting between technology representatives and solicitors) as to who (sender or recipient) is responsible for carrying this out.

If there has been an agreement as to electronic exchange of information andfurther parties then are joined in the litigation, their position will need tobe addressed. It is suggested that it should be the responsibility of thesolicitor whose client has joined the further party to inform it of theexistence of any agreement concerning the exchange of data.

Conclusion

The theme of the CPR is that parties to litigation should try to resolvetheir disputes in a constructive manner. Parties and their lawyers areencouraged to be more open and co-operative in the exchange of information anddocuments. The use of data exchange agreements will help to further that aim.