Part 2 of the eDiscovery article, “E-Discovery Solutions”, underscored the increasing volume of documents received for review in litigation, mostly electronically. The purpose of this article is to share best practices, how generic tools are used to mitigate some of the pain of preparing trial bundles.
While the current reality is that trial bundles must be produced in hard copy (at least for the judges), it is easier, quicker and more efficient when the evidence is collected in its native format. This is particularly true in the case of email evidence, which currently forms the bulk of evidence in most litigation.
A single email thread may include multiple conversations, each one including all the prior conversations up to that point. When received in native format, the email metadata can be used to automate the naming of any document within that thread (albeit an email or attachment). In addition, conversion of a document to PDF from its native (electronic) format is faster, and cheaper, compared to converting hard copy documents to PDF. The table below shows an estimated cost comparison:
Conversion of email to PDF$0.03/ page
Conversion of paper to PDF (scanning and OCR)$0.14/ page
Documents received in hard copy must be scanned to create PDFs, in order to be delimited, named and indexed. However, while preparing to scan, one may realise that the documents are either crumpled, of various sizes or a combination of single-sided or double-sided. Another possible issue during the scanning process is that of double sheet feed or misaligned feed.
As the commonly-used photocopier cum scanner lacks some of the functions of a dedicated scanner, it is important for law firms to invest in a dedicated scanner to address some of the issues named above. A dedicated scanner would have the built-in ability to identify double and single sided pages. In the occurrence of a misfeed, the dedicated scanner is able to resume the process where it left off once the misfeed is resolved.
As with all tools, the best value can be obtained from a dedicated scanner when it is used well. Dedicated scanners may be difficult to use and not as available in the market, so some time and effort will have to expended to learn how to use it effectively.
The documents going into the trial bundle need to be delimited. Once again, it is far easier to delimit electronic documents as compared to physical documents. The following summarises the difference between delimiting electronic and physical documents:
- Delimiting electronic documents (PDF): Use ‘split documents by bookmark’ function
- Physical delimiting (paper documents): Manually remove staples, insert green sheet between each document, scan and then bookmark
As delimited documents need to be named, it is most efficient to name each document as it is split by a bookmark. However, this is only effective if all irrelevant documents and duplicates are removed prior to the splitting.
The other requirement is to create a list of documents, the “Bundle of Documents” index (refer to the following illustration).
Lawyers typically confine their use of Microsoft Office tools to Microsoft Outlook for emails, and Microsoft Word for anything else. The recommendation to use Microsoft Excel over Microsoft Word to create the list of documents (or trial bundle index) is based on the ability, in Microsoft Excel, to sort data. The list of documents created in Microsoft Excel can be sorted by chronology, which eliminates the time spent manually cutting and pasting to create a chronological list.
Reviewing PDF documents on a computer screen and toggling this with your Excel file, to create the list of documents, will prove inconvenient and slow. It is more efficient to use 2 screens for this process: one screen to go through the documents, and the other with displaying the Excel sheet. Should the list of documents be updated in the course of preparation, with items removed and new ones included, Excel can re-sort the updated data in chronology. This is not possible in Word.
Once named, the bundle is ready to be paginated but not before taking the following into consideration:
- Orientation of the bundle: portrait or landscape
- Different sized documents – e.g. charts, prints, images, or print is too near the edge of the document, leaving little room for numbering. Scanning software that is pre-installed in dedicated scanners will ensure there is adequate white margin space to annotate the page numbers.
- Adobe Acrobat and Nuance Professional’s Bates Numbering function enables application and removal of sequential page numbering to the documents, thus greatly reducing the need to laboriously hand stamp the pages.
The insertion of the page range in the bundle index, to indicate the page numbers of each bundle document, is a time consuming, manual affair. Unfortunately, generic off-the-shelf tools are unable to automate the page range creation.
Depending on the volume of documents, the trial bundle may need to be “volumized” – that is, organised in such a way that each “volume” (arch file) of documents does not exceed 300 or 500 pages, depending on whether the documents have been printed single- or double-sided. Unfortunately, this is another pain point that cannot be automated by generic tools.
In the US, there is a thriving litigation support industry, with service providers using specialist technology tools to automate the entire evidence management and review process, including the preparation of trial bundles in compliance with prevailing requirements.
Litigation support services provide scanning, deduplication, delimiting, document indexing, pagination, volumisation and printing services, and US law firms routinely outsource these processes to external service providers. Specialist litigation support services use specialist software to automate the above workflows, and are able to turn around bundle production more accurately, and in a much shorter time than law firms. Their costs are more predictable, and more easily recovered from the losing party, than the time costs of in-house staff.
Finally, the documents (that have been indexed, paginated and volumized), need to be printed. There are quite a few pain points here:
- Printing double-sided documents: the first page of a document cannot start on the second side of a page. Without the right tools, the PDF will need to be reviewed and adjusted manually.
- Colour and non-colour documents: when these are interspersed, printing must be monitored manually and is thus very slow, since standard printers either print in colour or greyscale. Opting for full colour printing as the default is very costly.
- “Excel” issues: the spreadsheets in Excel files are not always constrained in an A4 layout when printed. Here again, this must be reviewed and adjusted manually. This is another area where litigation support service providers can assist, by inspecting Excel sheets and adjusting any formatting issues.
- Tabbing and binding: these processes are usually very manual and unrewarding. Machines that automate these processes are not tools that law firms possess. For large bundles, outsourcing to litigation support providers, who have access to these tools, would be an option to consider.
Do bundles always have to be in paper?
eBundles are now becoming more commonplace, supplementing or replacing paper bundles in hearings and arbitrations, and offer cost, and time, savings both before and during trial.Scenarios in which to consider eBundles include:
- Document intensive multi party trials.
- Cases involving evidence which is best presented in native electronic format e.g. an excel sheet or videos.
- Cases where hyperlink navigation to documents being referenced would be very useful.
The preparation of eBundles will be discussed in the next article in this series, “Paper-less hearings or eHearings”.
In conclusion, the preparation of trial bundles can be made less onerous by reviewing the current workflow, and harnessing some of the functionalities of the generic tools available, including PDF editors and Microsoft Excel. For firms whose main practice area is litigation, it may be worthwhile considering whether to invest in a dedicated scanner, creating a centralized litigation support team, or engaging outsourced litigation support services to do the grunt work of bundle preparation.
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