22 February 2018Print This Post

High Court orders manual document search in $65m damages claim after concerns over computer review

Disclosure: Court orders sampling of 55,000 documents

A High Court judge has ordered a manual search of 55,000 documents in a $65m breach of warranty case because of concerns over the claimants’ approach to computer-assisted review (CAR).

Mr Justice Coulson said disclosure had been “something of a running sore in this case”, which potentially involved three terabytes of data made up of 20m electronic documents in 860,000 folders.

Coulson J said the CAR exercise carried out by the claimant companies, represented by City firm RPC, and the sampling it produced, could not be described as “transparent” or “independently verifiable”.

The judge said there were “perhaps 10 paralegals and four associates involved in the searches”, but it was “not apparent that there was any overseeing senior lawyer”.

Coulson J that counsel for the defendant companies was “right to say that the sheer volume of those involved with the CAR system in this case may mean that it has not been ‘educated’ as well as it might have been, particularly in respect of the criteria for relevance”.

Delivering judgment in Triumph Controls UK and another v Primus International Holding and others [2018] EWHC 176 (TCC), Coulson J said the claimants sought around $65m from the defendants for breaches of warranty following the sale of the defendants’ aerospace business.

The defendants sought orders from the court arising from “fundamental deficiencies” in the claimants’ disclosure. The first was that the list of 860,000 folders and file paths identified by the claimants on a shared drive should be provided to them, so they could see if there were any that should be searched.

The second was for a manual review of the remaining 220,000 documents which had not already been subject to a manual search, out of the 450,000 which had been identified as potentially disclosable.

Coulson J said the claimants had “always been clear” about the shared drive, their approach had been reasonable and proportionate, and the defendants were “very late” in complaining about it.

He rejected the defendants’ application for further disclosure of the folders/file paths.

Coulson J said he had “much greater concerns” as to the claimants’ approach to searching the 450,000 documents identified in the original keyword search, aided by CAR.

He said the claimants did not do what they said they would in their electronic documents questionnaire (EDQ), which promised a manual review of all the documents responsive to keyword searches.

“Although the broad outline of the searches undertaken by the claimants was subsequently explained in September 2016, it was not a detailed exposition. At no time have the claimants provided relevant details as to how the CAR was set up or how it was operated.”

Coulson J went on: “This problem has been compounded by the lack of information as to the sampling exercise. All that the defendants, and the court, have been told is that there was a sampling exercise which produced a predictive figure of 0.38%.

“But there is no information as to precisely how that sampling exercise was conducted. There are, for example, no stated tolerances and no explanation of how many rounds of sampling were undertaken. That again is unsatisfactory.”

Coulson J said the claimants were concerned that a manual review of the remaining 220,000 documents would cost £180,000 and take two months, but that this must be set against the size of the claim.

“As to the estimated time, I consider that two months is very much a ‘worst case scenario’ because, whatever the arguments might be as to their status as proper comparators, there was other evidence in the documents which indicated that it would not take anything like as long as two months.”

The judge ordered the parties to agree a methodology by which a sample of 25% of the 220,000 documents could be manually searched, the search to take “no longer than three weeks” and the results to be put in a letter which Coulson J could be shown at a later hearing.

By Nick Hilborne

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