In-house E-Disclosure Teams Should Not Be Vilified

Cabo Concepts Ltd v MGA Entertainments (UK) Ltd & Another[1] has caused much agitation among litigators and e-disclosure professionals. Just three weeks before the start of the trial in this case, the defendants informed the court that they had missed approximately 84,000 documents[2] due to errors in the data collection process underlying their disclosure. This process had predominantly been carried out by the defendants’ in-house IT team. The repercussions for the defendants were substantial: the trial was adjourned for over two years; the defendants were ordered to produce detailed evidence as to the cause of the failings; the disclosure exercise had to be redone with an independent e-disclosure provider; and the claimant was entitled to recover its costs thrown away on an indemnity basis.

On the face of it, the case appears to be a warning against conducting e-disclosure in-house. However, properly administered, the use of in-house technology and teams can be highly effective and efficient. Here are our key pointers for companies with in-house capabilities to ensure the smooth running of the disclosure process.  

Be flexible with in-house technology

Cloud systems have allowed companies to invest in cost-saving and efficient technology in which they control their own data without the headache of physical components. But having in-house software is only half the story; you will also need a team well-versed in how to get the best from the system and with full understanding of any restrictions. Keep in mind, for instance, that the software may well be capable of what you are asking of it but if your licence does not cover a particular aspect, you may not get the expected results.

There is no single ‘best’ or ‘easiest’ e-disclosure technology. The most appropriate technology for any given case will depend entirely on the case’s characteristics. In-house teams should ask themselves not whether they could do something, but whether they should do something.

External consultants need not be avoided altogether, even where there is pressure to keep control of data in-house. They can provide supervision and guidance without needing the keys to your data.

Expect questions

You should expect to be questioned in detail by your legal team when handling any aspect of the collation, export or hosting of data. They need to understand the technical process to be able to guide you and to know when to challenge you.

In the past, there has been a tendency to keep legal and technical workstreams separate. The disclosure rules have slowly evolved to mean that this is no longer an option. Lawyers must be able to follow the steps in order to explain these to the court fully. Of course, the extent of the questioning will depend on the nature of the case. For most commercial cases, a forensic trawl of computer logs is unlikely to be necessary. But one would expect to see data being tracked to record aspects such as volume, counts, dates and types, and questions to be raised when there is a discrepancy against expectations.

Engage with project management

One of the more challenging aspects of the disclosure process is ensuring communication and understanding between the key stakeholders. Some degree of legal and technical jargon will always find its way into the mix. Having a team or individual able to bridge those areas is game-changing.

You should therefore ask your legal advisers who will be managing the day-to-day technicalities and practicalities of the disclosure process. That individual or team must be comfortable dealing with in-house IT or e-disclosure teams. This will not necessarily be the lawyers with day-to-day conduct of your case.

Review the reviewers

Review centres (often based off-shore) are generally suggested as the lower-cost option for the document review process, particularly when the disclosure process involves a large dataset. The right centre, properly managed can undoubtedly be wonderfully efficient and cost-effective. However, there is a significant range in the quality of these centres, and even good quality centres must be properly managed to get a consistent, defensible work product. You should check that the review team is well-integrated and there is a clear plan for review management. Questions to ask include: is there a weekly check in? Is there a designated process to raise questions? Do reviewers have immediate access to the case team? Who is supervising and how are they monitoring decisions?

It should also be noted that using review centres will not automatically lead to cost savings, and parties must look beyond the headline review costs to establish whether they are being used appropriately (or even whether they are necessary at all). By way of example, if the review is being conducted on a pay per document model, there will be a natural inclination on the part of the review centre to review large numbers of documents when there is technology available to significantly reduce the requirement for human review.

Validation by design

A well-designed disclosure exercise incorporates technology and workflows to ease the process and provide confidence in results. Where data must be released to opposing parties, you will want to know that there is a validation plan.

You should expect to see both quality control and quality assurance built in. This should not add significant cost. As with so much of e-disclosure technology today, tools such as content analytics and machine learning are easier than ever to apply and should be used for assurance even where there is no plan to use technology-assisted review for prioritisation or reduction. What you will want to know is not whether your legal advisors are using these forms of analytics but how they are using them.


The challenges faced by the defendants in Cabo are far from unique. However, with foresight and experience, they are eminently surmountable. In-house IT teams can be extremely well-placed to carry out aspects of the disclosure process, but they should only do so if they are properly supported, guided, and (if necessary) challenged by well-informed legal teams.

[1] [2022] EWHC 2024 (Pat)

[2] This rose to approximately 800,000.


Joy Thornhill