When making standard disclosure pursuant to the Civil Procedure Rules, a party is now required to disclose electronic documents (e-documents) in addition to more traditional paper based documents or tape recordings of evidence, microfilms or microfiche. This article looks at what that requirement entails and some practical consequences arising out of it.

What is an e-document?

A "document" has always been broadly defined as meaning anything in which information of any description is recorded. This now expressly includes emails, word processed documents, imaged documents and metadata (being information relating to changes made to electronic documents stored on a computer system). It also includes electronically recorded communications and activities such as instant messaging on online systems (eg MSN Messenger) and multimedia files (eg voicemail and video).

In addition to documents that are readily accessible from computer systems and other electronic devices (such as personal organisers, PDAs, laptops etc) and media (such as CDs and DVDs), documents that are stored on servers and back-up systems and electronic documents that have been 'deleted' are also covered.

Extent of the search

Given that (i) well over 90% of documents in business are created and stored electronically and (ii) up to 70% of documents produced by businesses are never converted to hard copy and are thus stored on various hard drives, compact disks, back-up tapes and DVDs these new obligations could be thought to expose clients to huge cost implications. In particular, the cost of retrieving data from a back up system (where the data is often compressed which may require the assistance of experts to retrieve and restore) and/or restoring files of residual deleted data is likely to be very substantial.

When making standard disclosure, however, a party is only required to make a reasonable search for documents that support his case or adversely affect his own or another's case or supports another's case. The e-disclosure requirements are not intended to increase the cost burden on the parties. They simply widen the scope of "documents" to which a party must give consideration when giving disclosure.

With e-disclosure, this rule balances the duty to disclose information with a consideration of (a) the volume of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document and (d) the significance of any document which is likely to be located during the search. It may also be reasonable to search by means of keyword searches (agreed as far as possible between the parties) where a full review of each and every document would be unreasonable.

When evaluating the ease and expense of retrieval of any particular document, consideration should be given to how accessible the documents are, their location, the likelihood of locating relevant data, the cost of recovery, the cost of disclosure and inspection and the likelihood that the documents may be materially altered in the course of the disclosure process.

The e-disclosure process in more complex cases

Once the search has been completed and the electronic data collected (and, if necessary restored), IT experts are able to filter the data to identify potentially relevant documents by the use of subject or key word searches. It is also possible to remove duplicate documents thereby reducing the overall volume of documents to be manually reviewed. Images of the electronic data can then be processed and loaded onto the same database as hard copy documents.

The electronic database is then ready to be reviewed on-line. Databases can be designed to allow lawyers to search for documents by title, description, subject matter etc. This makes documents very accessible and ultimately saves costs.

Electronic data disclosure (EDD) software can assist with this process and the services of an external supplier can be used. It is not unreasonable, however, for clients with sophisticated IT capabilities to undertake the e-disclosure process in-house.

Case management and obligations

The parties should discuss any e-disclosure issues that they think may arise in advance of the first case management conference ("cmc"). This may involve the parties providing information about the categories of e-documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. The parties should also cooperate at an early stage as to the format in which copies of e-documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to a judge for directions, if possible at the first cmc.

The parties also now need to sign a newly worded disclosure statement which specifically requires the person signing the statement to state whether they have carried out a search for e-documents and, if so, the extent of that search and provide details of any limitations.

Practical consequences

E-disclosure can be daunting. Grappling with the sheer volume of electronic documents can pose a significant challenge. If, however, clients can be persuaded to manage their documents better, e-disclosure will be a far less painful process.

In particular, it is important to consider advising clients to have an electronic document strategy both to preserve documents and to facilitate document searches. A clear policy on the preservation of electronic data, in particular, could prevent potentially disastrous consequences both in terms of costs and prospects of success in subsequent litigation. If electronic files are stored in a methodical manner, this will also facilitate the process of searching for and categorising documents at a later stage. It should also streamline the process of preparing statements of case and subsequent witness statements.

A further consideration is a client's policy on e-mails. Given that e-mails should now be disclosed, there is potentially a huge danger to businesses in flippant e-mail exchanges unless they can be protected by legal professional privilege. A clear policy on e-mail use should therefore be implemented.

Costs warning

The Cresswell report (which eventually led to the revised practice direction to Part 31) stated:

"At the conclusion of the trial (or earlier if appropriate) judges should give separate consideration as to the cost incurred in relation to e-disclosure and who should pay those costs, having regard to the reasonableness and proportionality of the disclosure requested and given, the relevance of the disclosure given or ordered to be given to the issues in the case presented at trial, and the conduct of the parties generally in relation to disclosure".

Whilst this was not specifically adopted in the new rules, this warning about possible costs penalties in relation to e-disclosure should not be ignored. The judges are likely to refer to it as useful guidance, at the least, when dealing with the new rules.

Conclusion

As technology develops, the categories of items that will be viewed as coming within the definition of "document" for disclosure purposes will continue to increase as more and more work is both carried out and stored electronically. As legal IT guru Professor Richard Susskind has predicted, e-disclosure has the potential to become "one of the most significant topics on the agenda of those involved in dispute resolution in the coming ten years". Failure to act positively to these issues may ultimately result in heavy penalties for your client.

 

For further information, please contact Sarah Foster, partner.