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All litigants are obliged to disclose and permit inspection of
documents which either support or undermine their case.
However all new multi-track cases1 which are
commenced on or after 1 October 2010 will be subject to more
rigorous requirements in relation to electronic disclosure
("edisclosure") and it is important that all litigants
are aware of their obligations.
In practical terms, this means that all parties must consider
electronic disclosure at a much earlier stage than is currently the
case.
What is Electronic Disclosure?
A "document" is anything in which information of any
description is recorded. Electronic disclosure includes text
messages, audio and visual recordings, information held on portable
devices (eg PDAs and memory sticks), computer hard drives, disks,
mail servers and back-up systems, electronic diaries, photographs,
voicemail, and, most importantly, e-mail. It also includes any data
which has been deleted, and metadata.
What are the Main Changes?
Revised procedures are contained in a new Practice Direction
(PD31B) and e-disclosure questions have been added to the
Allocation Questionnaire.
There are 3 key features of the new regime:
As soon as litigation is contemplated, the parties are under an
obligation to preserve disclosable documents.
The parties and their legal representatives must cooperate in
discussing:
disclosure and management of electronic documentation; and
the tools and techniques/formats to be used for disclosure and
inspection, in order to reduce the burden and cost of the
exercise.
This may involve attempting to reach agreement on the extent of a
"reasonable search", the keyword searches to use, and the
basis for charging for, or sharing the cost of the edisclosure
exercise.
The parties may complete and exchange an Electronic Documents
Questionnaire.
Why are the Changes Happening?
The current obligation to disclose electronic documents and
information has been largely ignored or overlooked. In many
instances, the parties have not taken their obligations seriously,
and there have been a few high-profile cases where poor management
of electronic disclosure led to wasted Court time, and therefore
increased costs.
Senior Master Whitaker was therefore asked to undertake a review
of the situation, and the new regime is a result of his
recommendations.
The changes aim to reflect "best practice" and to
encourage greater co-operation between the parties in relation to
disclosure.
What is the Practical Effect of the New Regime?
You may wish to review your document retention/destruction
policies. Parties which have destroyed documents when litigation is
contemplated, even if it has been done by mistake or in accordance
with a routine destruction, can expect adverse inferences to be
drawn. In extreme cases, a party's claim or defence may be
struck out. There is no guidance on the meaning of "when
litigation is contemplated" so it is always best to err on the
side of caution.
Parties and their legal representatives must work together at
an early stage, in order to ensure that their e-disclosure
obligations are met. This will mean co-operating with the other
side in discussing the management of e-disclosure. Parties are
likely to have to exchange information about their storage systems
and document management practices.
The Court must be informed (at the first Case Management
Conference) about the matters which the parties agree on, and those
which they don't agree on.
If the parties cannot agree, the Court is likely to order the
parties to complete the Electronic Documents Questionnaire. This
new Questionnaire contains 23 questions about a party's
electronic documents, including how they intend to carry out
searches and give inspection, as well as their thoughts on what
other parties should do with regard to disclosure of their
electronic documents.
What are the Benefits of the New Regime?
Although Senior Master Whitaker has described the new regime as,
quite simply, a "roadmap" for e-disclosure, some of the
requirements may seem quite onerous. However, the key issue is to
try to ensure that parties carry out a proportionate and reasonable
search for electronically stored documents. The key solution lies
in the parties exchanging information before they carry out the
search. This should have the effect of reducing or avoiding costly
court applications.
Footnote
1. multi-track cases generally have a value of more than
Ł25,000 and/or have complex issues of fact, law or
evidence
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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