The Exchange of Data in Litigation

We have written separately about the slow but steady move towards enforced co-operation between parties to litigation (see Co-Operative Litigation replaces Adversarial Litigation). Like it or not, it is here, and is backed by costs penalties where opportunities for costs-sharing are ignored. It will probably also be backed by business pressures as clients vote with their feet in favour of anything which might reduce the cost and delay.

One of the obvious areas for co-operation is the exchange of the data generated in the course of the litigation - the word-processed pleadings and similar documents and, increasingly, the information which makes up the Lists of Documents. This article looks at what it means in practice

The exchange of word-processed pleadings, affidavits and skeleton arguments on disk is well-established. Most solicitors now use Word or WordPerfect, or something which is compatible with them and can easily exchange text files. Increasingly, parties are also exchanging schedules of loss in the form of spreadsheets - these were always a co-operative venture, in that all parties have had to contribute to a single comparative document, but until the common use of spreadsheet packages, it was difficult to achieve this without much re-typing.

Very often, the biggest element is the information contained in Lists of Documents. This has the added feature that the same information is used and re-used several times in the life of an action, with one party, having the burden of adding the other sides' data to their own to produce indexes for hearing bundles. It is very much easier to do this if the information is held in a database rather than in a word processor format.

Exchanging lists of documents produced on different systems requires agreed standards. The biggest difficulty in achieving this apparently obvious aim was always the absence of any agreement on standards for database formats, field lengths and so on. In the early 1990's the Official Referee's Solicitors Association published recommended standards for the exchange of many kinds of data. The ORSA Protocol (as the standards were then known) had the active encouragement of the Official Referees and other courts were supportive. The new Rules, in practice, make the use of agreed standards compulsory in many cases. It seems such standards are being agreed on an ad hoc basis between the cooperating parties.

With some honourable exceptions, practising lawyers are not versed in the technicalities of data formats, nor do they want to be. Most IT departments would find it a trivial task, given certain parameters, to move data between systems, but are not alert to the potential or the need for costs-saving.

Even with the advantages of having the information in a database, that is only the beginning of the task. To combine two sets of names well, one needs a set of common rules, particularly a naming convention. Few authors or typists of Lists of Documents in the same department use the same naming rules (they often use no rules). It is therefore unlikely that lists from two different firms will follow the same rules without some pre-agreement between them.

The message to the fee earners is this: to get the full cost benefits for your clients from the sort of co-operation envisaged by Woolf you will need agreement with opponents at the outset of litigation as to what information will be kept and exchanged, what data formats will be used and what field names and sizes are needed.  You might also agree on a common format for names - forename + surname + "of" + company name for example - and even on an agreed dictionary of names, so that your opponents' public data can be added to yours in due course to make a common list available to both parties. You will also agree to use systems which allow the import and export of data in the agreed formats - this is usually done via an intermediate format readable by both systems.

The message to IT Managers is this: there is a career opportunity here! As these pre-litigation discussions become the norm, there will be a continuing need for IT-literate staff to get involved in inter-partes discussions at the outset of litigation to plan for an exchange of data in a way which is not only reliable and cost-effective as between parties, but which guarantees the security of the private data.

This has been done for years, to some extent, between the larger firms engaged in document-heavy litigation. It has not always worked - technical difficulties, mutual distrust, and arguments over the division of labour or cost have hindered many voluntary attempts at such co-operation.

The voluntary days are coming to an end. There are good arguments for starting to acquire the skills now.


Chris Dale

Chris has been working on litigation support software for over 10 years. The software is marketed under the name Openlaw.

Openlaw is low cost litigation support software, priced by the matter, designed to help litigators meet their post-Woolf obligations in the most cost-effective manner.