The new rules on electronic disclosure affect healthcare providers as the widespread use of technology in hospitals, surgeries and clinics means electronic documents have become a key source of disclosure materials. This article provides some practical guidance for healthcare providers on what to expect in the future.
The requirement to consider e-disclosure now applies in all cases where proceedings started on or after 1 October 2010.
Does it really apply to my case?
Yes, the rules on e-disclosure set out under Practice Direction 31B of Civil Procedure Rules apply to multi-track cases with any cause of action which began on or after 1 October 2010. To-date there have been both clinical negligence cases and product liability cases which have been the focus of e-disclosure.
What is an e-document?
A 'document' is anything in which information of any description is recorded. This broad definition now includes email, text messages, voicemails, word documents, radiographs, photographs and metadata.
Perhaps the biggest surprise to some is the fact this includes deleted items or 'metadata' as it is known. This will include documents stored on servers and back up systems. Therefore, it is important to ensure preservation of documents as soon as litigation is contemplated (i.e. at the inquest or complaint stage).
How will the rules affect my cases?
The new rules may cause some concern over the escalating costs of complying with e-disclosure. However, the e-disclosure rules are not intended to increase the cost burden on the parties and there are ways of managing the costs.
The Practice Direction encourages and assists the parties to reach an agreement in relation to the disclosure of electronic documents in a proportionate and cost-effective manner.
It is also good to remember that the rules on standard disclosure remain unchanged but the scope of 'documents' which a party must consider has been extended. Therefore, a party is still only required to make a reasonable search for documents that support his case or adversely affect or support another's case.
The general principles of e-disclosure balance the duty to disclose information with (a) the nature and complexity of proceedings; (b) the significance of any document that is likely to be located during the search; and (c) the volume of documents involved.
These considerations must be borne in mind by both parties and should specifically be considered during pre-case management conference discussions. If agreement cannot be reached between the parties the case should be referred to a judge for directions.
Conclusions
Given the ever-increasing volume of electronic data that is created in the workplace the new rules on e-disclosure will have far-reaching consequences.
The best way to be prepared for e-disclosure is to ensure these electronic documents are manageable and easily searchable. Therefore, it is recommended a policy is adopted and applied throughout the workplace for preserving documents (including emails) and filing electronic documents. This will make any search more manageable in the future.
Finally, those who create documents in the workplace need to be aware that these documents may need to be disclosed if litigation is subsequently contemplated. In particular, many have been trapped by the informality of emails which later have been disclosed. Adopting a strict policy now can save problems later.
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.
