Should the court intervene to correct alleged deficiencies in electronic disclosure?
Triumph Controls UK Ltd & Anor vs Primus International Holding Co & Ors  EWHC 176 (TCC)
Before Hon Mr Justice Coulson in the Technology and Construction Court Judgment delivered 7 February 2018
In 2013 Triumph purchased Primus’ aerostructure manufacturing business including facilities at Farnborough in England and at Rayong in Thailand. In 2016 Triumph subsequently alleged breaches of warranty and commenced proceedings against Primus claiming $65m (£47m) in damages.
Standard disclosure was ordered and the parties agreed a list of key words. Triumph’s key word searches indicated some 450,000 responsive documents. Triumph reviewed about 230,000 documents using manual searches aided by a computer assisted review. A sampling exercise on 1% of the remaining 220,000 suggested only 0.38% would be relevant, so Triumph decided that it would be disproportionate to continue the manual searches. This approach was not agreed or discussed with Primus and was contrary to Triumph’s electronic documents questionnaire, which indicated that all responsive documents would be manually reviewed.
During July 2016 Triumph served its first list of documents, which identified 12,476 documents. Triumph subsequently served 11 supplemental lists, which encompassed more than 7,000 further documents, including about 2,000 that had been responsive to the key word searches agreed with Primus. In its first list Triumph had explained that in relation to a database known as the “Farnborough shared drive” it had asked the document custodians (listed in appendix A of the list) to identify which of around 860,000 folders or file paths – representing 20 million documents – were likely to contain relevant material. Triumph’s solicitors had then carried out a further cross-check, which reduced the amount of data by around two-thirds.
During December 2017 Primus issued an application for: (i) an order that the list of 860,000 folders and file paths should be provided to it so that it could see whether or not any folders or file paths should be searched; and, (ii) an order that Triumph undertake a manual review of the 220,000 documents that had not been manually reviewed following the initial keyword searches.
Was Primus entitled to the orders sought?
The judge said that while Triumph should have tried to agree its approach to the Farnborough shared drive with Primus he considered that the explanation provided in the list of documents was sensible and proportionate given among other things that Primus had been unable to identify any folders or file paths which were obviously missing. Furthermore, where Primus had taken some 17 months to raise a complaint, the judge thought it would be neither reasonable nor proportionate to order Triumph to disclose the full list of folders and file paths.
The judge considered Triumph’s approach to the 220,000 documents unsatisfactory. Triumph had not carried out the manual review promised in its electronics documents questionnaire nor had it made clear in its list of documents the nature of the sampling exercise undertaken, for example by reference to tolerances or rounds of sampling. It appeared that no senior lawyer had been involved in supervising the exercise and there was no explanation offered of how Triumph’s computer assisted review had been undertaken. The judge therefore concluded that Triumph’s approach had been neither transparent nor independently verifiable and this was material where the total number of documents disclosed was modest and where some of Triumph’s further disclosure included documents that should have been disclosed first time around and/or were of sufficient relevance to have been referred to by Triumph’s witnesses.
The judge therefore made an order that the parties should forthwith agree a methodology by which a sample of 25% of the 220,000 documents was to be manually searched, such a search to take no longer than three weeks and the results to be put into an agreed letter to be shown and explained to the court at the next hearing on 22 February 2018.
Albeit a rare example of a judge directly intervening into the practicalities of disclosure, this decision highlights several points of general application:
- The parties should try to agree upon the approaches they intend to take towards electronic disclosure and the court will usually be unsympathetic to a party that has acted unilaterally.
- The explanation of the approach to electronic disclosure set out in the electronic disclosure questionnaire and/or the list of documents should be sufficiently detailed to enable the adequacy of this approach to be gauged by the opposition.
- Do not deviate from the approach explained in the electronic disclosure questionnaire and/or the list of documents.
- Any doubts about the sufficiency of the opposition’s disclosure should be raised promptly.
Ted Lowery is a partner in Fenwick Elliott