Search me
Practitioners must give early and proper consideration to the disclosure of electronically stored information, and should ensure the search is discussed fully with the other side, says Mark Clark
Guidance on the process to be followed in relation to disclosure of electronically stored information (ESI) has been available for some time in the practice direction (PD) to CPR 31. The PD:
- gives some clarification on the definition of an electronic document for the purposes of CPR 31.4 (PD paragraph 2A.1);
- directs the parties to communicate and cooperate in considering issues regarding searches for, and the preservation of, electronic documents in advance of the case management conference (PD paragraph 2A.2) and in agreeing at an early stage the format in which electronic copy documents should be provided on inspection (PD paragraph 2A.3);
- sets out the factors that may be relevant in deciding the extent of the reasonable search for electronic documents required by CPR 31.7 (PD paragraph 2A.4); and
- provides for the use of search tools such as keyword or cluster searches where a full review of the documents may be unreasonable (PD paragraph 2A.5).
In his final report, Lord Justice Jackson commented that the steps required by PD paragraph 2A.2 have not become widespread practice and that the PD is often ignored.
He also stressed the importance of e-disclosure and the need for change in disclosure procedures.
While the Civil Procedure Rule Committee is currently reviewing the e-disclosure practice direction, the problems of not giving proper consideration to the contents of the existing PD have been highlighted in three recent decisions.
The risks
The risk and exposure in costs of not engaging in an informed and cooperative dialogue as to the search to be made was shown in Digicel (St Lucia) Limited v Cable & Wireless [2008] EWHC 2522 (CH). In this case, standard disclosure by list had been ordered but there was no discussion as to how electronic disclosure should proceed. The defendant decided unilaterally to undertake what it considered to be a reasonable search for relevant documents applying a keyword search of its own design of the email accounts of 85 individuals. The exercise cost £2.175m.
On the claimant's application for specific disclosure, Morgan J ordered the search exercise should be carried out again, extending it to cover additional individuals and further keywords, underlining the fact that the court expects full cooperation between parties in relation to paragraphs 2A.2 and 2A.5 of the PD.
In Earles v Barclays Bank Plc [2009] EWHC 2500 QB, while the defendant was successful, the judge considered that both parties did not give proper consideration to disclosure of ESI in particular in relation to the bank's failure to procure the retention of a key witness' email account and telephone records. He found the bank's conduct of disclosure was below expected standards and had there been proper disclosure there was a reasonable prospect the matter would not have proceeded to trial. When assessing costs under CPR rule 44.3, he reduced the costs award to 50 per cent. As to compliance with paragraph 2A.2, the judge commented: 'The PD is in the CPR and those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to.'
These cases highlight the priority to give early consideration to investigating the nature of the client's ESI and to discussing the scale and nature of the search to be undertaken with the other side. Where agreement cannot be reached, the issue should be referred to the court.
Providing information
While the outcome of the CPRC's consideration of the PD is awaited, a useful prompt for what to consider when addressing e-disclosure can be found in Gavin Goodale v The Ministry of Justice [2009] EWHC B41 (QB). Here, Senior Master Whitaker, who chairs the CPRC working committee considering PD 31, ordered the defendants to make a reasonable search for documents, and in doing so required them to complete a draft ESI questionnaire.
The questionnaire is designed to provide the other party and the court with information on a party's ESI so that adequate information is available for the parties to have an agenda for discussion and for the court to exercise sensible case management.
The draft questionnaire and guidance notes are attached to the judgment (see summary in the box below).
In light of the decisions set out above, there should be no need for further encouragement for parties to give proper early consideration to the provisions of the existing PD.