All Trusts, general practitioners and their respective defence organisations should be aware that, in relation to multi-track proceedings which have commenced since 1 October 2010, there is now the obligation to provide disclosure of electronic documents ("e-disclosure").

The obligation is wide ranging and incorporates any document held in electronic form – including emails, voicemails, text messages, word processed documents and databases, documents on memory sticks or other portable storage devices, documents stored on servers and back up systems, deleted documents, and meta-data and other embedded data. The precise nature and number of documents will vary according to the specific facts of the case and may, in many circumstances, be limited to the clinical records – but that will not always be the case.

While there remains the need to consider e-disclosure within the context of the overriding objective, and for such disclosure to be proportionate and relevant, it will become more and more likely that defendants in clinical negligence litigation will be faced with aggressive e-disclosure requests. Ultimately, deficiencies in conducting appropriate searches will be addressed by the courts and may lead to a range of sanctions, including costs penalties or potentially striking out defences.

In addition, where there are concerns about the nature and scope of disclosure investigations, defendants may be required to sign, with a statement of truth, an Electronic Documents Questionnaire and to thereafter attend court.

The immediate concern, when faced with edisclosure issues, is that the additional costs that will be required to be expended by defendants will be considerable. That is likely, to some extent, to be correct although the obligation to disclose documents (whether electronic or hard copy) is not new and such disclosure remains required only in relation to relevant documents. The Civil Procedure Rules, Practice Direction 31B, suggest a number of ways parties can agree to limit the scope of identifying relevant documents and thus limiting the costs to be incurred. Early communication between the parties to agree the scope of investigations, coupled with robust document retention policies, may mitigate the worst costs consequences.

There are a number of practical steps which should be adopted at this stage, including:

  • Holding a clear and effective documents retention policy which includes electronic documents and specifies theindividual responsible for conducting necessary searches.
  • At the point of first notification of a claim, taking steps to identify and preserve relevant electronic documents.
  • Having in place details of document retrieval processes and the costs of the same, to consider whether more extensive searches are proportionate and reasonable in the context of the litigation.
  • If e-disclosure is likely to be an issue, communicating with the claimant's solicitors from the outset to identify which categories of document are relevant.
  • On notification of a claim, identifying key witnesses and advising them of their duty not to delete or destroy relevant electronic documents including emails.
  • If in doubt, seeking timely legal advice!

Barlow Lyde & Gilbert LLP will be offering further training on e-disclosure issues during the coming months. In the meantime, if you would welcome any further advice and assistance please do not hesitate to contact Claire Petts.

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.