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PROPORTIONALITY · A GUIDE FOR UK LAWYERS Proportionality in e Disclosure: When Is Enough Enough? Volume, Cost, Importance, Difficulty and Evidential Value COMPUTER FORENSICS LAB DISCOVERY. UK
§ ABOUT THE AUTHOR PREPARED BY COMPUTER FORENSICS LAB E-DISCOVERY TEAM FULL CHAIN-OF-CUSTODY DOCUMENTATION
§ CONTENTS In this guide 01 Executive summary 02 The problem in plain English: estates without endings 03 The legal framework: proportionality every where 04 Factor 1 · Volume 05 Factor 2 · Cost 06 Factor 3 · Importance 07 Factor 4 · Technical difficulty 08 Factor 5 · Evidential value 09 Running the balance: the argument in practice 10 Proportionality as strategy, in both directions 11 The stopping decision: when enough is demonstrably enough 12 Worked examples 13 Common mistakes and technical limitations 14 Questions to ask · Suggested wording 15 Checklist and red flags · When to involve a digital forensic expert 16 Frequently asked questions 17 Glossary · References · Disclaimer · How a specialist laboratory can assist
§ 01 · ORIENTATION Executive summary THE HEADLINE ANSWER: WHENISENOUGHENOUGH?
§ 02 · FIRST PRINCIPLES The problem in plain English: estates without endings
§ 03 · THELAW The legal framework: proportionality every where
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§ 04 · FACTOR1 Volume
§ 05 · FACTOR2 Cost
§ 06 · FACTOR3 Importance
§ 07 · FACTOR4 Technical difficulty
§ 08 · FACTOR5 Evidential value
§ 09 · METHOD Running the balance: the argument in practice ELEMENT CONTENT 2 · The cost side, itemised Provider-quoted collection, processing, hosting and review figures for the increment, with 3 · The value side, sampled Measured richness, uniqueness against existing sources, and the issue-level significance 5 · The proportionate What you offer instead: preservation, sampling, a staged trigger, a targeted Model C, 6 · The record The cooperation history on this increment: what was exchanged, offered and refused,
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§ 10 · BOTH DIRECTIONS Proportionality as strategy, in both directions
§ 11 · THEEND The stopping decision: when enough is demonstrably enough
§ 12 · IN THE WILD Worked examples EXAMPLE1 · THEARCHIVETHATSTAYEDONTHESHELF EXAMPLE2 · FORTYCUSTODIANSMEETARITHMETIC EXAMPLE3 · THEREQUESTINGPARTYWHOASKEDSMALLANDWON EXAMPLE4 · STOPPINGTHEREVIEWWITHANUMBER 0.5 per cent, the sampled items reviewed and assessed as duplicative of disclosed material. Review
§ 13 · WHEREITGOESWRONG Common mistakes and technical limitations Common mistakes Technical limitations
§ 14 · INTERROGATORIES & DRAFTING AIDS Questions to ask · Suggested wording Ask your client Ask your opponent Ask your e Discovery / forensic provider SUGGESTED WORDING · PROPORTIONALITY PA R AG RAPHFORTHEDRDORA SUBMISSION ( A DA PTPERINCREMENT ) SUGGESTED WORDING · CHALLENGINGANUNEVIDENCEDBURDENOBJECTION
§ 15 · QUICK CONTROL Checklist and red flags · When to involve a digital forensic expert The proportionality checklist Red flags When to involve a digital forensic expert
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§ 16 · COMMON QUESTIONS Frequently asked questions Is proportionality just about money? Can we refuse to search a source simply because it is expensive? Who bears the burden on a proportionality dispute? Does proportionality ever excuse not disclosing a known adverse document? How does proportionality work in smaller claims? The court ordered more than we think proportionate. Now what?
§ 17 · REFERENCE Glossary Sources and authoritative references DISCLAIMER
§ HOW A SPECIALIST LABORATORY CAN ASSIST Working with Computer Forensics Lab Speak to a forensic examiner, not a salesperson. INSTRUCTTHELAB NEWENQUIRIESEMAILE - DISCOVERY
Cite as: Joseph Naghdi, Proportionality In EDisclosure When Is Enough Enough, Computer Forensics Lab, https://e-discovery.uk/library/proportionality-in-edisclosure-when-is-enough-enough/pdf.