Seven Network v News: the C7 discovery, run with Claira

Seven Network ran C7, a sports channel for pay television, until it closed in 2002. In the Federal Court of Australia, Seven alleged that its rivals had conspired to prevent C7 from securing the pay television rights to AFL and NRL football, leaving Fox Sports with a monopoly over sports channels for pay television. The claims were brought under the Trade Practices Act 1974 (Cth) and the Broadcasting Services Act 1992 (Cth) against 22 respondents, among them News Limited, Publishing and Broadcasting Limited, Foxtel, Telstra and Optus.

The electronic database built from discovery and production held more than 85,000 documents, or 589,392 pages, and 12,849 documents were admitted into evidence over 120 hearing days.

Take the chair of Seven's lawyers with the respondents' discovery loaded into Nuix Discover. Purpose is proved largely from what the other side's people wrote at the time, so the first job is finding where those people and those years sit in the volume.

Before anyone reads a page, the team needs a map of the collection. Claira's early case assessment runs from the Claira menu, under More, with Run assessment. It reads the metadata of every document the person running it can see, without reading their content, and reports the custodians, the senders and recipients, the file types and languages, and the date coverage with its spikes and gaps. Its settings can count up to five additional pick lists, so if the case has a producing-party pick list, the assessment shows how the volume divides among the respondents. The report ends with suggested segments for targeted review, each with Discover search criteria.

The dates would be expected to bunch around the rights negotiations, and those spikes are where the first reading belongs.

The searches themselves stay in Nuix Discover. The Agent can read the assessment and draft search term families, while the team runs the searches and chooses the documents that go forward to review.

The team would start a Case Context from the Litigation/eDiscovery template and choose up to five key documents to build it from, and the statement of claim and the defences of the principal respondents are the obvious picks. After Add to context, Claira organises the facts into sections and lists the missing information the team still has to supply. A partner then approves the context, which locks it and makes it available to the Prompt Generator, so every reviewer works from the same brief.

The review prompt can start from Claira's cartel screening workflow, which reads for hedged or coded language and moves to calls or meetings, and reports a risk tier from High to None. That workflow is written for price-fixing, market allocation and bid-rigging between rivals, so the team would rework it around the purpose Seven alleged, asking about documents that discuss C7, the AFL and NRL rights, or the supply of sports channels for pay television.

The prompt is tried first through single review, on 10 to 25 documents chosen to cover the variety in the set, from board papers to emails between executives and drafts of rights agreements. Each is opened in Nuix Discover and run with Scan Document, and the wording is adjusted until the answers hold steady.

The full run is a bulk scan in Multi-Code, which fills up to ten fields in one pass. Here the team might ask for the risk tier, the rights deal the document concerns, the parties and intermediaries named, a supporting excerpt, and a one-line dated event in the YYYY/MM/DD form the event identification workflow uses. The answers are written into the team's own Discover fields as the scan runs.

A selection of tens of thousands of documents is well within a single bulk task's limits. The team can move the run to background processing with Send to background and close the browser, and the task records the prompt version it ran.

A first pass on contested purpose evidence needs checking before anyone relies on it. The team would sample the documents marked None or Low and read them. Claira's QC review workflow then runs the same criteria over documents the human reviewers have already coded, so that the disagreements rise to the top. Where the prompt asked for a justification and an excerpt, most disagreements can be settled quickly, and the cause is often a nickname, a code word or a thread split across documents.

Fallback values deserve a filter of their own. In text mode Claira reads extracted text, so a cluster of fields left at the fallback often points to poor text, and those documents go back for OCR or for a person to read.

Changes to the prompt are kept as versions, and the bulk task shows which version it used. Team members can leave comments on a bulk task, which gives the matter a record of what was found and what was changed in response.

The dated event lines feed an Insight. In Insights mode the team picks the bulk task as its source, starts from the Chronology template, chooses the Timeline format and clicks Generate Insight. Claira reads the field values as they stand in Nuix Discover at that moment, so corrections made during quality control are included.

One Insight reads up to 25,000 documents from bulk tasks. In a review of this size that suits the shape of the case, provided the bulk scan is run in segments: one for the AFL rights, one for the NRL rights and one for the dealings over channel supply, with a chronology built from each task.

Claira checks citations against the source documents and removes any that point outside them. Whether a cited document supports its sentence is for the lawyer to confirm, by hovering over the citation to preview the source and opening the document itself.

Claira can sort the record and put it in date order. The theory of the case remains legal and economic judgment. Seven's claims turned on how the market was defined and whether the conduct had an anti-competitive purpose or effect, and those questions were argued through witnesses and expert reports as much as through documents.

The trial judge's reasons show how far documents could carry the case. Justice Sackville held that, even if the respondents had aimed to eliminate C7, that could not have substantially lessened competition in the retail television market. On that reasoning, evidence of purpose alone could not decide the claim.

The choices about evidence stay with counsel as well. Of more than 85,000 documents in the database, 12,849 were admitted. Choosing the documents for the court book, the witnesses who speak to them and the points to concede is work for the people who sign the submissions.

The chronology leaves Claira as a download. The Word version keeps headings, tables and citations as live links with page references, ready for counsel to edit into a submission. The Excel version puts each table on its own sheet, with a sheet of the source documents and their field values for the litigation support team to check against the court book.

If the case has a log field configured, Claira tags the source documents with the Insight's reference, so the documents behind a chronology can be found in Nuix Discover with a search and assembled for the electronic court book.

The real case ended in the respondents' favour. Justice Sackville dismissed Seven's claims on July 27, 2007, and remarked that "the expenditure of $200 million and counting on a single piece of litigation is not only extraordinarily wasteful, but borders on the scandalous." The Full Court of the Federal Court dismissed Seven's appeal on December 2, 2009.