Tackling e-disclosure

By Tracey Stretton, Legal Consultant, Kroll Ontrack

Many parties and practitioners in England have apparently ignored the 2005 practice direction’s requirements on the disclosure of electronic documents, either because they are unaware of it or because they are apprehensive about electronic disclosure and its cost.

Cases have also reached the courts recently where problems with the disclosure of electronic evidence have required judicial intervention. What has become apparent is that the mismanagement of e-disclosure has resulted in wasted costs sometimes running into millions of pounds, the collapse of several high profile cases, and court-imposed sanctions.

As the High Court pointed out in Goodale v Ministry of Justice, it is not an answer to the volume problem to say that the exercise of searching for and disclosing electronic documents should not be carried out at all. Cases must still be dealt with justly and electronic documents are often critical to the fact finding process, as was the case in Earles v Barclays Bank. At the same time, it’s crucial to ensure that the legal costs incurred are kept in proportion to what is at stake in a case.

The solution

A new approach to pre-trial procedures and the use of technology has been taken to tackle the volume problem and offers more detailed guidance on how to handle e-disclosure.

The new practice direction, 31B, on the disclosure of electronic documents came into effect on 1 October 2010 and applies to English proceedings allocated to the multi-track. The fundamental aim is to encourage and assist parties in reaching agreement over the disclosure of electronic documents in a proportionate and cost effective manner.

The courts have indicated in recent cases (like Digicel (St Lucia) and others v Cable & Wireless and others) that sensible cooperation is essential and the best solution in terms of cost management. There seems little point in disclosing to each other what you already have, and crossover it highly likely, given the way that electronic communication works.

New requirements

So what are the main aspects of the new e-disclosure requirements?

• Mandatory disclosure: The requirements are mandatory, so a more cautious approach to e-disclosure is required to ensure compliance and avoid penalties for adopting an unreasonable approach (which is what happened in the Digicel and Earles cases).

• Litigation hold procedure: The practice direction enforces the common law duty to preserve evidence and introduces a litigation hold procedure.

• Compulsory communications: Early and ongoing communication between parties is compulsory and not a mere suggestion. A comprehensive agenda is set out for discussion, with the aim of agreeing a sensible approach before the first case management conference or even before for more complex cases.

Lawyers must discuss how they are going to present information to each other and at trial, preservation, the categories of electronic documents which they seek to disclose, the scope of the reasonable search to find these, and the tools and techniques to be used to reduce the scope and burden of e-disclosure.

• Information exchange: Parties are required to exchange information about their electronically stored information. The new practice direction introduces an electronic documents questionnaire which, although not compulsory in all cases, will act as a useful guide to e-disclosure. The court has discretion to order its completion if agreement on electronic disclosure cannot be reached.

A senior legal or IT representative will need (with assistance from others) to describe the data held by a party, how easy it is to access, whether it has been preserved, and what steps will be taken to search and review the data to decide what will be disclosed. This person will need to sign a statement of truth and attend hearings where e-disclosure is discussed.

• Search requirements: The practice direction sets out the factors to consider when carrying out a ‘reasonable’ search for documents as required by Civil Procedure Rule 31.7.

Ensuring success

Planning, communication and simplicity are the hallmarks of successful e-disclosure projects. The new practice direction and questionnaire provide a useful roadmap for reducing risks and costs, while codifying best practice.

The author gratefully acknowledges the assistance of Daniel Kavan with this article.