| SPOTLIGHT |
The rules on e-disclosure were changed for multi-track cases beginning after 1 October 2010. Daniel Kavan and Tracey Stretton explain how public sector organisations can comply with the new practice direction.
Rules of English civil procedure have long required parties in legal disputes, including government organisations, to disclose all relevant documents to the case being tried. Electronically stored communications and documents are generated daily in the ordinary course of business and administration, and their volumes are increasing at an alarming rate. Lawyers, therefore, are starting to find it increasingly difficult – and costly – to manage such volumes.
In recent years, a number of cases have reached the courts, where problems with the disclosure of electronic evidence have required judicial intervention. Although none of the cases have involved local government bodies, it is clear that public sector organisations are not exempt from the requirement to handle electronic disclosure appropriately.
There are a number of recent examples. In the case of Al-Sweady & Ors, R (on the application of) v Secretary of State for Defence [2009] EWHC 2387 (Admin) (02 October 2009), a judicial review, the Secretary of State for Defence was criticised for problems with the disclosure of electronic communications.
In the case of Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), the plaintiffs sought disclosure of the ministry’s electronic documents to prove allegations of systemic failures on the defendants’ part in looking after prisoners who had dependencies on opiates. As could be expected, it was asserted by Senior Master Whitaker that “[d]isclosure is a fundamental and necessary obligation in a case like this, particularly when important allegations about the mis-treatment of prisoners arise.” The parties had duly agreed on disclosure of paper documents but there was no agreement as to the disclosure of the ministry’s documents which were stored electronically. “They simply do not want to carry out a search for ESI,” said Senior Master Whitaker. Proportionality is an important concept when assessing the requirement to disclose various forms of electronic evidence, and the defendants argued that it would have been disproportionate to carry out the exercise, because of high volumes of information to search across multiple sources.
Senior Master Whitaker pointed out that there “is no legal difference in the disclosure test to be applied to documents that are held electronically and paper documents.” He recognised that a search for electronic documents could be more costly than a search for paper documents, but said it “does not mean to say... that the exercise of search for and disclosure of electronic documents should not be carried out at all.”
Around the time of this decision, the Jackson Report on Civil Litigation Costs had highlighted the significant impact on the costs of litigation caused by the proliferation of electronic data, and reforms were under way to amend the Civil Procedure Rules to include a new practice direction. A part of what was being considered by the Civil Procedure Rules Committee for the new practice direction was a questionnaire, which would require litigants to complete detailed information about what electronic information they hold and how they plan to deal with it for disclosure.
The problem Senior Master Whitaker had in Goodale was that he did not have enough information about the electronic documents and communications held by the defendants to make a decision as to how they ought to carry out the disclosure of such information. He therefore directed the ministry to fill out the questionnaire (then in its draft form) to explain what kind of documents, communications and databases they possessed, where such information was stored, and how they could potentially deal with it.
The new Practice Direction 31B on the disclosure of electronic documents has now come into effect for cases commencing after 1 October 2010. It applies to English proceedings allocated to the multi-track and aims to “encourage and assist the parties to reach agreement in relation to the disclosure of electronic documents in a proportionate and cost effective manner.” It deals with various aspects related to the disclosure of electronic documents, including:
It also officially introduces the Electronic Documents Questionnaire, like the one which Senior Master Whitaker promoted in Goodale.
Although the Practice Direction only applies to multi-track cases, and the questionnaire is optional (unless the court uses its discretion to order parties to use it as per the Goodale case), the guiding principles within both of these documents could be used as a road map on how to handle disclosure of electronic documents in any litigation where electronic evidence could be important. It encourages parties to confer with each other as to how they will carry out the process of preserving, identifying, searching and reviewing electronic documents, and handing the same over for inspection. Historically, parties have been reticent to discuss electronic disclosure. However, the lessons of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008) make it clear that it is essential to communicate with the other side.
The Practice Direction also enforces the common law requirement to preserve documents once litigation is contemplated. “The parties’ legal representatives must notify their clients of the need to preserve disclosable documents... [including] electronic documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.” (PD 31B.7)
The Practice Direction states that prior to the first CMC, lawyers must discuss:
A number of examples are provided, including keyword searches, as well as methods which have become good working practice. These include data sampling, de-duplication and using a staged approach to disclosure.
Parties must provide to the court, ahead of the first CMC, a list of issues which have and have not been agreed in relation to disclosure. This will allow the court to decide on any outstanding matters at the CMC and is the ultimate objective of the Practice Direction and Questionnaire.
The Practice Direction and the Questionnaire regularly make reference to a “reasonable search” for electronic documents, as required by CPR 31.7. Paragraph 21 offers a list of factors to consider in determining what might be a reasonable search. These include the number of documents involved, the nature and complexity of proceedings, the ease and expense of retrieval of any particular document (which will depend on how “accessible” it is), the availability of the same material from other sources, and the significance of any documents likely to be found.
This may raise arguments as to what is reasonable and what might be outside that scope. Determining what is a “reasonable search” for each individual case can be difficult, and open to challenge. It essentially involves working out what evidence is needed to advance or defend a case and where it might be found. The cost of obtaining data from less accessible locations should be balanced against the likelihood of finding anything relevant. Electronic disclosure experts should be used to estimate the difficulty of accessing such data and the cost, as any argument at the CMC would best be supported by expert advice or at least a cost estimate.
A prior understanding of the issues that arise in dealing with disclosure of electronic documents, and the technology and techniques available to carry out successful exercises, has become essential for litigation lawyers. As Lord Jackson pointed out in his report, electronic disclosure should be a substantial part of legal education. The better prepared lawyers are to deal with the procedures and technical processes raised in the Direction, the less confusion that will occur and the smoother the disclosure process will be.
The new Practice Direction codifies good working practices developed over recent years to save costs in managing documents for disclosure. The Questionnaire acts as a useful checklist for the information that needs to be gathered and the issues that need to be discussed and agreed upon to conduct the process efficiently. If lawyers embrace the advice provided, they will be better prepared to control the way disclosure is managed and the increasing costs associated with it. Most importantly, whether covered by the new practice direction or not, following its principles will help lower risk and help avoid adverse disclosure applications like the Ministry of Justice was subject to in Goodale.
Daniel Kavan is an electronic evidence consultant and Tracey Stretton is a legal consultant at Kroll Ontrack (www.krollontrack.co.uk). Further information can be found here.
