The Post Office Horizon scandal that is currently dominating the UK headlines wrecked the lives of hundreds of innocent people. The miscarriage of justice which has captured the attention of the British public and parliament now also reads like an eDiscovery 101 or nightmare - depending on whether you are embedded in the matter or reading from afar. It is a cautionary tale and valuable reminder for anyone ho deals with, data, collection, review and production in other words for the eDiscovery professional, their lawyers and their clients.
Sir Wyn Williams’s statement that disclosure had been grossly unsatisfactory made on 15 September 2023 followed a disclosure hearing;
“The process failures identified in the evidence as being those responsible for the disclosure failures are not in dispute. They are
(i) a failure to set appropriate search terms for electronic searches of documents;
(ii) a failure to deal appropriately with the “de-duplication” of documents
(iii) a failure to properly consider and assess the relevance of “families” of documents
Having heard evidence about each of those issues in detail I see no reason to alter the view I have expressed on more than one occasion that the failures of disclosure which have come to light are properly described as grossly unsatisfactory.”
The full extent of the Post Office Horizon scandal can be accessed by non-UK residents via podcasts and/or articles which explain the background and I recommend seeking out those to get a bigger picture. The high-level summary involves people accused and wrongly convicted of stealing, leading to prison, suicide and bankruptcy. The miscarriage of justice is currently considered the most widespread in UK history, and it arose from a faulty accounting system and a substantial cover up. It has been ongoing since 1999 and is currently the focus of an Inquiry. The people affected are sub postmasters, their friends and their families. The accused’s children were bullied, family spat on and outcast all due to the persistent lies that were wielded by those with the power.
The Inquiry held last Friday 12 January 2024 focused on the Disclosure, which at Friday’s hearing was described and admitted to be ‘suboptimal’. For any eDiscovery professional or any lawyer who has been through the disclosure process the statements in the Inquiry will no doubt send chills. As Jason Beer KC stated, countering any feelings of the subject matter being dry, “for the Inquiry the disclosure of documents is the lifeblood of the Inquiry”.
As is often the case there were more issues than this, data governance was poor, preservation and collection misunderstood. These issues have led to delays in hearings, last minute uncovering of emails, wasted time and accusations of further mismanagement.
This Inquiry has been very public. There is no doubt that disclosure requires early consideration. Any attempts for it to be hurried, or minimized or either solely client led, lawyer led or eDiscovery consultant led is rarely the best approach. Team based disclosure, the team consisting of a partnership between lawyer, client and eDiscovery professional creates the best outcome. Upfront best practice collection, preservation and review is integral to good outcomes and avoiding any accusations of hiding evidence or being in a situation of delaying hearings, and/or providing last minute evidence.
The point now for the Inquiry is to arrive at a situation that allows hearings to be timetabled with a stable position for the proper administration of justice. The lessons for the rest of us is a stark reminder that the starting point is always communication. Lawyers and their eDiscovery consultants forming a positive and trusted relationship where the legal team explains what they need and the eDiscovery consultant aids them to achieve it. It is a collaborative approach where time spent upfront saves issues and delays. Collection is integral to a good document set and to running standard eDiscovery functions such as deduplication. Good data governance means the client has a clear understanding of where data sits and of data policies that will inform decisions. The tracking of collection, and a thorough analysis of the data uploaded to review platforms including ensuring that expected data is in the document set will all form part of those valuable conversations.
And while the subject may seem to some people to be in the words of Jason Beer ‘desiccated’ the motivation to prioritise these steps and avoid this very public or even case limiting outcome should be high.