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This article is prepared by Greener Litigation and has three aims:

(1) Educate on best practices: to educate lawyers, paralegals, technologists and other allied professionals on best practices around how to create a court bundle and how to ensure compliance with the various court bundling requirements.

(2) Make a case for change: to illustrate that court bundling is an arduous and expensive process, exacerbated by inadequate tools and processes and differing requirements across various courts and tribunals.

(3) Propose a way forward: to provide some thoughts and ways forward through which this process can be improved.

This article is an introduction to the key problems we see in bundling practices, and where solutions may lie.

To support these aims, Greener Litigation is seeking to canvass views from law firms and others involved in disputes as to whether Greener Litigation should: (1) carry out further analysis on a potential way forward; (2) collect data to quantify the extent of these issues; and (3) establish a working group involving law firms, barristers, courts and all others involved in disputes, to resolve these issues, and make court bundling more sustainable. Anyone interested in commenting on these points should read Next steps to contact us.

What is a bundle?

“Bundle” is a generic term used by lawyers to refer to multiple documents collected together in a specific order for a specific purpose.

Historically, bundles have been made in “hard copy” involving printed documents. These bundles usually take the form of one or more volumes of lever arch folders with numbered dividers and coloured sheets to separate one document from the next. An “index” at the front of the hard copy bundle lists out the documents contained within it.

More recently, the “e-bundle” has emerged, which is the electronic equivalent of the hard copy bundle. An e-bundle is usually a single PDF document used to combine together multiple other documents. Like the hard copy bundle, it contains an index, which is often hyperlinked to allow readers to jump to relevant documents quickly. This document primarily focusses on e-bundles.

What is a court bundle?

A court bundle (often referred to as a hearing bundle or trial bundle) is a series of documents that need to be submitted to a court or tribunal in connection with court proceedings (for example, interim hearings, the case management conference, or trial). Court bundles may contain key evidence to be relied upon by the parties as well as other materials to support their claim.

Court bundles are increasingly made as e-bundles. As we will see, the format of an e-bundle varies depending on the relevant court or tribunal.

Producing court bundles is a process commonly conducted by paralegals and junior lawyers. As a process, it is problematic for a few reasons.

Lack of training

Preparing court bundles involves a mechanical set of processes not taught at law school. Many firms do not have a defined process when it comes to court bundling and so it is something that paralegals and junior lawyers learn on the job. As a result, there is an absence of best practice.

Opaque process and client expectations

The production of court bundles is sometimes considered a low-value and straightforward activity, and generally falls into a category of work that clients do not expect to pay for.

Consequences of bundling errors

If errors are made in the bundling process, this can have a direct and/or indirect impact on the litigation. For example, a firm that prepares poorly-organised bundles that do not meet court requirements may face adverse cost consequences or delays to proceedings. At worst, a bundle that misses key evidence may have a substantive impact on the outcome of a dispute.

Complex processes

Producing a court bundle involves more than simply printing documents – it involves a series of complex steps, which can result in errors being made. Often, these errors involve going back to the start of the entire process, or produce knock-on effects that are time-consuming to resolve.

Differing requirements

As noted above, different courts, proceedings and judges all have different requirements to be fulfilled for bundles, and some still require bundles to be printed. This means that all the above issues are exacerbated because the process for creating a bundle depends on the court, proceedings and judges involved. Firms have differing practices around maintaining knowhow in this area, which means that practices for preparing bundles can also become out-of-date.

Underinvestment in technology

Some law firms have invested in bundling software to improve these issues. Bundling software is not seen as “innovative” by many firms and sometimes there is a gap in understanding between IT and procurement teams making purchasing decisions and what lawyers actually do in their working lives. This means that lawyers are often not given the right tools for the job.

Contention and acrimony

In courts in England and Wales, a single, common set of trial bundles must be produced and agreed upon by the parties. This can cause pain points where the parties are uncollaborative, hostile, or worse, deliberately trying to undermine or cause administrative headaches. Technology providers trying to assist with smooth bundle processes are often caught in the centre of such acrimony.

Status quo

Trial is a stressful time for all involved and often it feels easier to revert to familiar tools and workflows when it comes to bundling. The “this is how we’ve always done it” approach can be a pain point for junior lawyers who know there are better, more efficient ways to produce bundles.

Those creating bundles often have to follow a series of steps similar to the below.

Finding documents

The contents of bundles are often scattered in different sources (e.g. e-discovery platforms, file shares, memory sticks, DMS etc.).

It can take case teams time for lawyers to track down the content for bundles. Even when the relevant documents are located, there are often lingering doubts as to whether the correct version has been included.

Drafting of an index

The documents in a bundle should be agreed between parties to litigation wherever possible.

Preparing the index involves listing a series of headings and numbered items corresponding to each document (as well as other information, such as the date and parties to documents). There are differing requirements, e.g. around the treatment of numbering of documents in the index. The index is often created as a Microsoft Word document, which means there is a dislocation between documents referenced in the index and where the underlying documents are stored.

Document processing

Depending on the underlying tool being used, documents have to be converted into a consistent format (e.g. PDF). This is often straightforward, but complications can also arise, e.g. in relation to email chains, separation of email threads and treatment of attachments (.msg files), track changes in Word documents, the output format of an Excel document, non-standard file types (CAD, media files, images), OCRing scanned documents, dealing with landscape documents etc.

Initial document consolidation

Once documents are processed, they are typically combined into one large file. This can be very comsuming as lawyers need to make sure documents are in the correct order, with correct pagination and page orientation. Depending on how many documents make up the bundle the overall file size can then impact the loading speed and navigation within the e-bundle.

Pagination

Pagination refers to the page numbering within a court bundle. It is important because parties and judges will often need to refer to specific documents with reference to a particular page.

Bundles nearly always need to be paginated (either continuously or individually), and the pagination to be reflected in the index as an extra column. Practical considerations, such as the length of the bundle, should be taken into account when applying pagination to ensure any cross-references are clear. Some lawyers may lack knowledge on how to carry out this step effectively.

Finalising the index

It is also a common requirement for the index to be interactive so that each document title in the index is hyperlinked to the corresponding document in the bundle, as well as for bookmarks to be included in the PDF document so that the documents are navigable from common PDF reader applications.

Sharing the bundle

When the bundle is complete, it needs to be shared. Often, this is still done via email but it is preferable to use file share websites. Once the document is sent it is difficult to make changes without re-sending the bundle. Large file sizes can often make this process slow and difficult.

Filing the bundle

In certain circumstances, e-bundles must be filed via CE-File.

CE-File has some challenges around user experience, in particular around file size limitations. In these circumstances, bundles need to be split up but kept in a format that means individual documents are not split over multiple files. The system does not have integrations with bundling tools, meaning that all bundles have to be downloaded and re-uploaded into different systems. Each time this happens, errors can creep in.

Amendments to the bundle

It is apparent from all the above steps that, depending on the underlying tool used, changing the contents of a bundle (either due to preference or error) can be inefficient.

For example, if a document is added midway through the bundle at the last minute, it is quite possible that an index needs reproducing, a document needs inserting into the bundle, the pagination needs re-doing etc. These kinds of effects are often not appreciated, but they are extremely expensive, time-consuming and stressful.

While many of the pain points around hard copy bundles have been solved with e-bundles – such as removing the need to print and courier documents – new issues have arisen (both technical and in terms of process), for example: sharing large documents, having to add bookmarks to PDFs, file size limits etc. While e-bundles have many advantages over hard copy bundles, these issues mean it can be a stressful and expensive area of legal process.

Firms have different capabilities around bundling. Here are some of the common approaches taken.

Litigation support

Some firms have dedicated teams who are charged with either creating or assisting lawyers to create bundles. This can help take some of the stress away from lawyers, and can result in a more efficient process.

However, in other firms, junior lawyers, trainees and paralegals are left to produce bundles themselves, instead of the process being outsourced e.g. to a central document processing team.

Technology

Some firms deploy e.g. Adobe Acrobat or Nuance PDF to carry out the above steps. In the worst case, lawyers have to use these kinds of “Swiss army knife” tools to work out for themselves how to produce a bundle.

Other firms consider the use of a purpose-built bundling tools such as those offered by BundleDocs, Epiq, TrialView, Zylpha or Opus 2 to operationalise the above steps and reduce time, costs and margin for error. There may be a specific team that is deployed to use these tools to take this work away from lawyers completely. Teams may also benefit from technical guidance around how to make these applications as stable as possible.

Ultimately, best practice involves deploying specific technology and leveraging specialist teams to operationalise it. However, we should be mindful that not all firms will have such a team or tools or have the budget to build or buy them.

In the worst-case scenario of no specific technology and no dedicated team, the main challenge lawyers face is how they can create an e-bundle with the tools their organisation already has. This often requires detailed knowledge of document management systems, document processing and file-sharing tools.

Firms have different capabilities around bundling. Here are some of the common approaches taken.

A consistent approach between courts, tribunals and judges

The fact that bundling requirements differ so much depending on the relevant court or tribunal and adds a level of inefficiency in the bundle creation process that arguably does not deliver value. A more consistent approach should be taken that allows for these processes to be conducted more efficiently and sustainably.

Modernising the bundle creation process

Law firms should be encouraged to use specific bundle-creation tools instead of relying on general-purpose tools and manual processes. Investment in specific bundle-creation tools is an obvious way to add efficiency and reduce the cost of litigation.

These tools potentially allow bundles to be created on a rolling basis as documents are delivered , rather than as a standalone exercise under high pressure to a tight deadline.

PDF or an alternative format?

As noted above, the e-bundle removes many of the pain points associated with the hard copy bundle. However, the target file format being PDF has several drawbacks, and it may be worth considering other options.

While dedicated solutions exists to create bundles, these solutions exist only because the process of creating a bundle is so painful.

Alternative formats, as highlighted above, should be considered, which could all but eliminate the manual processing lawyers have to do to serve the underlying purpose of a bundle – which is to share information between parties, provide a record for the dispute and to make sure parties are referring to the same documents in proceedings. This would allow lawyers the time to focus on more valuable work.

Lack of centralisation

PDF e-bundles have to be manually created, updated and circulated. They are difficult to unpick, edit and share in real time. A more appropriate format may be a centrally managed platform accessible by all parties and the court. Indeed, this is the way in which many proceedings operate but steps should be taken to pave a way to this being the standard – particularly for complicated proceedings.

We welcome comment from any organisations involved in the bundling process, in particular around these questions:

• Do the problems with bundling resonate, and are they significant enough for you to want to work with other organisations to help fix them?
• How much time do you consider is lost in proceedings as a result of bundling?
• Would you be willing to take part in a survey or a roundtable discussion with Greener Litigation and other industry stakeholders to help quantify the severity of these issues?

Contact us with your comments and take part in this discussion.