Proportionality In EDisclosure When Is Enough Enough

PROPORTIONALITY · AGUIDEFORUKLAWYERS Proportionality in eDisclosure: When Is Enough Enough? Volume, Cost, Importance, Difficulty and Evidential Value COMPUTERFORENSICSLAB DISCOVERY . U K § ABOUTTHEAUTHOR PRE PA REDBYCOMPUTERFORENSICSLABE - DISCOVERYTEAM 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 everywhere 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 § 0 1 · ORIENTATION Executive summary THEHEADLINEANSWER : WHENISENOUGHENOUGH ? § 0 2 · FIRSTPRINCIPLES The problem in plain English: estates without endings § 0 3 · THELAW The legal framework: proportionality everywhere § 0 4 · FACTOR1 Volume § 0 5 · FACTOR2 Cost § 0 6 · FACTOR3 Importance § 0 7 · FACTOR4 Technical difficulty § 0 8 · FACTOR5 Evidential value § 0 9 · 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, § 1 0 · BOTHDIRECTIONS Proportionality as strategy, in both directions § 1 1 · THEEND The stopping decision: when enough is demonstrably enough § 1 2 · INTHEWILD 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 § 1 3 · WHEREITGOESWRONG Common mistakes and technical limitations Common mistakes Technical limitations § 1 4 · INTERROGATORIES & DRAFTINGAIDS Questions to ask · Suggested wording Ask your client Ask your opponent Ask your eDiscovery / forensic provider SUGGESTEDWORDING · PROPORTIONALITY PA R AG RAPHFORTHEDRDORA SUBMISSION ( A DA PTPERINCREMENT ) SUGGESTEDWORDING · CHALLENGINGANUNEVIDENCEDBURDENOBJECTION § 1 5 · QUICKCONTROL Checklist and red flags · When to involve a digital forensic expert The proportionality checklist Red flags When to involve a digital forensic expert § 1 6 · COMMONQUESTIONS 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? § 1 7 · REFERENCE Glossary Sources and authoritative references DISCLAIMER § HOWASPECIALISTLABORATORYCANASSIST Working with Computer Forensics Lab Speak to a forensic examiner, not a salesperson. INSTRUCTTHELAB NEWENQUIRIESEMAILE - DISCOVERY