The 2003 Report of the Task Force on the Discovery Process in Ontario recognized that the culture of litigation has resulted in an “industry” of competing experts, which unduly increases costs. In construction disputes experts are often necessary, particularly with complicated delay claims. In this article we will explore different ways of providing records to experts with the goal of increasing their efficiency in reviewing and analyzing the records to reduce the time and cost associated with expert opinion preparation.
Traditionally, experts would receive binders, or even boxes, of paper records to review and analyze. Given today’s volume of information and advancements in technology, there are better ways of providing records to experts.
Two options include basic searchable electronic documents on an external drive or hosted location (such as DropBox) or access to a review database. While both of these options have substantial benefit over paper documents, including the ability to search the content of the records, utilizing a review database will have better functionality and superior benefits. We have outlined a couple of tips for and benefits of using a review database to provide records for expert review.
In litigation and/or arbitration, all electronic records in a review database are given a unique identifier, often called a Control Number, Document ID, Bates Number or Production Number. A unique identifier ensures everyone is referring to the same record.
Giving your experts access to the review database will permit the expert to use the functions of the database to search and filter for records, including analytics. This could include email threading, email thread and communications visualization, textual near duplication, document compare, conceptual searching and predictive analysis. These features can greatly assist the expert in identifying the key records for their opinion.
Review platforms also enable real time communication and sharing of ideas between litigation counsel and the experts. For example, counsel can direct the expert to various records and quickly obtain the experts opinion on the records impact to the dispute.
One feature of certain review platforms is the ability to create chronologies linked to supporting records. This feature will enable the experts to more efficiently track records associated with key events and aid in the drafting of their reports.
To protect privilege and to ensure the expert only reviews records explicitly provided, permissions can be established in a review database to limit the records that the expert can view to those that have been identified as requiring the expert’s analysis.
In addition, counsel are able to independently confirm all records reviewed by the expert and,importantly, that all records referenced in the expert report were in fact reviewed by the expert.
An alternative to granting experts access to the review database, is to export the records requiring expert review to a hyperlinked Excel spreadsheet. The Excel spreadsheet is populated with the unique identifier for each of the records, the metadata fields chosen (such as title, date to/from) and a hyperlink that opens the native or imaged document.
Experts can use the Excel spreadsheet to assist in reviewing and analyzing the records by filtering and sorting the fields, columns, provided. For example, records authored by the company procurement officer and sent to a key supplier in the first six months of the project could be identified and analyzed.
By leveraging existing technology, experts can expedite/improve their analysis by locating key records more efficiently even with the ever-growing volume of records.
T. James Cass is manager, review services and senior counsel at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence.
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