eDiscovery specialists manage many aspects of the EDRM cycle and today we are looking at the final two stages of this model, production and presentation.
Electronic trial bundles (“e-bundles”) are by far the most common form of trial production in the 21st century, but as the number of eDiscovery service providers continues to increase, each provider ends up with less and less experience in producing said trial bundles. Ensuring you have a thorough protocol in place to handle trial bundle procedures is a great way of keeping your team up-to-date on the latest practices. Here is what you can expect when completing a trial bundle with Altlaw.
What is a trial bundle?
A trial bundle is a compilation of all the documents deemed relevant to a case, presented in either electronic or hardcopy format. It is a key material in trial proceedings so making sure it is accurate and presented seamlessly is very important.
Trial bundles in court
Trial bundles (electronic or hard copy) have a very important role to play during court proceedings. It is imperative that they contain all the relevant files which will be referenced during the trial and that the final trial bundle is provided to the court and effectively the Judge by the agreed deadline. It is required that all parties to the proceedings agree on the content of the trial bundle, so push-backs and negotiations causing potential delivery delays are to be expected.
That doesn’t mean that you as an e-discovery provider can’t start your bundle preparation in advance. Furthermore, the Barristers and the Judge will be required to do pre-trial reading and a well-put-together bundle will guarantee the best prospect for preparing effectively. As they say, “a good bundle cannot win a bad case, but a bad bundle can damage a good case”.
Below, we note some helpful tips for preparing e-bundles for an e-bundle presentation platform.
Helpful tips on trial bundle preparations
- Make sure that you are invited to the initial e-bundle scoping call with your client and their chosen e-bundle platform provider. If possible, ask to be invited to the training session too so that you can get a deeper understanding of how the system operates.
- Typically, e-bundle platform providers will have working guides for clients, so make sure you also receive a copy. They should comply with the court’s guidelines on e-bundles, and it is important to keep in mind that non-compliance may result in electronic bundles being returned and cases taken from the list or being subjected to a fine.
The most important rules that apply to e-Discovery providers working with e-bundle service providers are as follows:
- Documents are to be provided in PDF format except for Excel spreadsheets, video or audio files which can be provided in their native format
- Documents must be in portrait mode so they can be read from left to right
- Documents must be text searchable and subject to OCR (optical character recognition)
- Documents must be sorted in ascending order, and what date fields should be used needs careful consideration when sorting and generating tab references (more on this below)
- Inserts added after a bundle deadline submission should be added at the end of the bundle. However, if it has been agreed by the parties that inserts can be slotted to existing bundles in chronological order, then legal numbering should be used (e.g., A/13.1, A/13.2, A/13.3 to be inserted between A/13 and A/14).
- A good trial bundle should consist of the relevant documents only (i.e., excluding non-relevant family members) and you need to agree with your client on whether they would like to use Sort Dates or Document Dates to sort the bundle. Be prepared to use both dates to accommodate for orphaned attachments and for those instances where a parent and one or more attachments are provided. Pay attention to family relationships existing in the bundle when adding inserts to the bundle later.
- To minimize the bundle size as much as possible, discuss with your client and apply email threading and textual near deduplication where appropriate. An example of what email threading looks like is included below.
- Flag any non-standard native file types to the e-bundle platform provider as they may need to acquire software licenses so these files can be viewed on their platform (e.g., CAD 3D graphics files).
- Check with the e-bundle platform provider what size limitations there are for uploads to their file share. You do not want to upload a hefty bundle and then find out that it needs to be split into multiple smaller chunks. The same applies to documents which contain more than 100 pages. There is nothing worse than being in a heated exchange during cross-examination and losing momentum because the “smoking gun” document is taking a long time to load.
- Understand volumizing bundles and the limits imposed by the e-bundle platform provider. For example, a bundle consisting of 5,000 documents, may need to be split into sub-folders, each assigned a bundle volume, to ensure that the folders load quickly and are easily navigable.
- It is good practice to name documents by their disclosure IDs when exporting from a review platform; however, it might be more practical to name files by their Bundle and Tab reference instead. Firstly, it will be more beneficial for the Judge and Barristers to refer to documents by bundle references. Secondly, there might be instances where non-produced documents such as inter-party correspondence, court documents or witness statements are added to the bundle and your unique IDs will have no meaning to the other parties. File rename commands make it quick and easy to rename a large number of files in bulk.
- Make sure you understand the agreed joint instructions for uploading documents to the e-bundle platform and the fields that need to be provided in the load file. Typically, dates should be provided in the “DD/MM/YYYY hh:mm” format. If you do not know the day or month you can substitute these units with '00'.
- Create a corresponding Bundle/Tab ID field in your review platform so you can track documents that have been included in the bundle and cross-reference them.
- To pad or not to pad? Check with your e-bundle service provider whether their system requires numbers to be padded and if not, how this will affect ordering in your platform.
- It might also be helpful to create a field which tracks documents that were subsequently deleted from a bundle for whatever reason, which you can refer to when questions about deletion are asked later.
- All hands on deck. The trial bundle preparation stage can be intense and stressful and out-of-office hours/weekend support will likely be required. Your well-being matters, therefore, make sure that you and your team have a good system in place that can manage clients’ expectations and supports well-being. In the words of Andy Warhol “health is wealth”. Clear and in advance/upfront communication on your availability is a good start.
For your amusement, we leave you with “Sedley’s Laws of Documents” which apply to hard copy bundles but can be applicable to e-bundles too. Whatever you do, do not comply with any of the laws listed, such as this further one, added by a clearly frustrated Barrister: “If any portion of any document is of particular importance to any issue in the case, that portion shall be highlighted, before copying, in a dark colour so that after copying it is rendered as nearly illegible as is reasonably practicable.”
Any further questions?
Speak to an Altlaw advisor about your trial bundle today and find out how we can help make this process as smooth and stress-free as possible.