UK: Disclosure of Electronic Documents

Last Updated: 28 March 2003

In this article we consider issues relating to disclosure of electronically-stored documents which are almost certain to arise whenever significant commercial litigation is in prospect. Recent high profile cases have shown they can be vital pieces of evidence which must be considered by those involved in litigation.

There are still very few rules which provide specifically for the way electronic documents are to be disclosed – English civil procedure makes no general distinction between the disclosure of a paper or electronic document.

However, there are several features which set electronic disclosure apart. An awareness of the potential legal implications of these distinguishing features is essential to those engaged in contentious work.

Are litigants obliged to disclose electronic documents?

There is no doubt that the obligation to give standard disclosure in litigation encompasses electronic documents. Rule 31.4 of the Civil Procedure Rules (CPR) is deliberately wide: the definition of a document for the purposes of the duty to disclose is "anything in which information of any description is recorded". Clearly, this definition encompasses computer databases, spreadsheets, presentation slides, word-processed documents and, perhaps most frequently, emails, irrespective of whether these documents are stored on desktop or laptop, hard disk, floppy disk, CD Rom, back-up tapes or otherwise. The definition also encompasses certain categories of documents which may not be immediately obvious to prospective litigants – for example, the contents of contact lists and diary information in electronic personal organisers. Such information may be crucial in establishing the existence of a relationship or the presence of a witness at a particular meeting and will be subject to the duty to disclose.

Under CPR 31.6 the disclosing party is required to give ‘standard disclosure’ of the documents which are or have been in its control and on which it relies, documents which adversely affect its own case and documents which adversely affect or support any other party’s case. The disclosure obligations in Part 31 of the CPR apply equally to electronic and hard copy documents.

What are the distinguishing features of electronic documents?

One of the most striking characteristics of electronic documents is the ease with which they can be created. This is particularly true of email, which undoubtedly lends itself to instant, unguarded comments on matters which can become acutely sensitive in subsequent litigation. High-profile cases such as Enron and the Microsoft anti-trust proceedings in the US have demonstrated this all too clearly.

Email also facilitates rapid replication – of both the email itself and of attached documents. The same email and sizeable attachment can be copied and forwarded very quickly and easily to a host of internal and external recipients – and every communication may fall within the disclosing party’s duty of standard disclosure. This will not only increase the logistical burden on the disclosing party, it may also have unforeseen legal consequences. The uncontrolled dissemination of a legally privileged document may, depending on the reasons for the circulation of the document and the extent of the circulation, lead to a loss of confidentiality and consequently a loss of privilege over a particular copy and require subsequent disclosure of the document.

The corollary of this characteristic is that electronic documents can be very difficult to destroy. Most frequent computer users will know that the ‘delete’ key generally only moves an electronic document to the computer’s ‘Recycle Bin’ but few will be aware that documents deleted from the ‘Recycle Bin’ actually remain stored on the computer. In general, computers ‘delete’ a document by simply renaming the file and removing it from the computer’s directory. The document will only be truly deleted when the physical space it occupies on the hard disk is overwritten by new information. As a result it may be possible to retrieve ‘deleted’ documents, unless the document has been overwritten. Specialist assistance would, almost inevitably, be required.

One further consequence of this is that available memory can run low because of the continuing presence of ‘deleted’ documents on the computer system. In response to this, some organisations have set up automatic procedures to overwrite older documents created at a certain date or which have not been accessed over a certain period. The disclosing party may not, therefore, in fact be able to retrieve all of its relevant documents when the time for disclosure arrives because of the operation of its electronic document retention policy. The continued operation of such a policy would need to be suspended in relation to relevant documents at a time when litigation is anticipated. Clearly, these issues have potentially serious implications for any electronic disclosure exercise.

Is there a different procedure for disclosing electronic documents?

There is no procedural distinction between the disclosure of paper and electronic documents. However, in practice a distinction does exist because of the very nature of electronic documents. An electronic disclosure exercise can potentially be a huge undertaking and raises additional issues for those on both sides of the exercise to consider.

Issues for the disclosing party:

The disclosing party must ask itself whether it really is disclosing all electronic documents in its control simply by presenting a snapshot of the documents on its computer system at the date of disclosure. What about the thousands of relevant documents which have ostensibly been deleted but which may be capable of being recovered from the party’s systems? Arguably, these remain in the ‘control’ of the disclosing party and should be disclosed, even if the disclosing party requires the services of forensic computing experts to recover the deleted data from its systems. What about documents which have automatically been deleted as a result of an electronic document retention policy? Even if the documents really have been ‘permanently’ deleted, does the disclosing party have back-up tapes of the deleted data?

A further issue to consider is the disclosure of ‘metadata’ related to electronic documents. This information, invisible on inspection of paper print-outs of electronic documents, can usually be obtained without great difficulty if an electronic copy is supplied. Metadata relating to a word-processed document, such as the identities of the author and of those who have subsequently edited it, the date of creation and the dates of any subsequent amendments may be of great value in the proceedings. The metadata for emails will assist in authenticating the date, content and despatch route – which may be essential where there is reason to suspect that the text of an email has been altered. If the metadata of electronic documents is likely to divulge crucial information, it may be necessary to engage forensic experts to look at the documents. In many cases, simply switching the computer on or off, or opening a document to inspect and print it, will alter the metadata stored on the hard disk.

Issues for the receiving party:

From the perspective of the receiving party inspecting electronic disclosure in cases where electronic communications are likely to be critical, that party must consider whether the documents disclosed really do tell the whole story – or whether some further questions, or ultimately even a specific disclosure application, may lead to the recovery of documents which the disclosing party may have ‘buried’ by accident or design. Are there emails from key personnel on the other side or do the authors and dates of the disclosed emails indicate a selective approach to disclosure? Has the other side disclosed emails but failed to disclose attached electronic documents? Have all emails in a particular ‘thread’, including responses from multiple recipients, been disclosed? Do you wish to request disclosure of the metadata associated with any documents? The receiving party must adopt a lateral approach and conduct careful due diligence to identify any gaps in electronic disclosure.

What lengths should a party go to?

The issue of proportionality is of paramount importance in deciding the extent of the disclosure exercise. CPR 31.7(1) entitles the disclosing party to limit itself to ‘a reasonable search’ when making standard disclosure. However, there is considerable scope for dispute as to where a ‘reasonable’ line should be drawn in practice. As a starting point, it may be difficult for the disclosing party to argue that it need only search for paper copies of documents; on the other hand, issues such as the necessity of disclosing ‘deleted’ documents capable of recovery by forensic experts or the value of trawling through voluminous back-up tapes to locate missing documents will be more contentious.

The nature of electronic documents is such that, when the documents have been collated electronically, it may be reasonably straightforward to search for emails created by certain individuals on a certain date, provided the emails have not been overwritten. In these circumstances it may be difficult for the disclosing party to argue that the search would be disproportionate.

How do the parties decide what is a reasonable search for electronic documents?

The reasonableness of the search for documents, whether electronic or hard copy, will turn on the particular facts of the case. CPR 31.7(2) sets out a non-exhaustive list of relevant factors to assist in deciding the reasonableness including:

a the number of documents involved;

b the nature and complexity of the proceedings;

c the ease and expense of retrieval of any particular document; and

d the significance of any document which is likely to be located during the search.

These factors will be particularly important when considering the additional issues relating to the search and retrieval of electronic documents. CPR 31.7(3) requires the disclosing party to declare the extent of its search in a disclosure statement and, in particular, to identify any categories of documents for which it has not searched on the grounds of unreasonableness. Ultimately, if the receiving party does not accept that the search has been conducted with sufficient rigour and no compromise can be reached between the parties, the extent of the disclosing party’s duty may need to be decided by the court.

Conclusion

Clearly, those involved in litigation must be aware of the additional issues raised by electronic disclosure. In addition, however, these issues must be borne in mind on an ongoing basis. Documents or emails created today may only become a problem in a dispute in five years’ time. Directors, in-house lawyers and others involved in corporate governance should not only be aware of the potential ramifications of their organisation’s electronic document retention and email policies – they should be involved in formulating those policies in order to avoid any surprises the next time significant proceedings are in prospect.

James Farrell

Craig Tevendale

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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