UK: Electronic Disclosure Of Documents

Last Updated: 2 February 2006
Article by Fergal Cathie and Tom White

The disclosure obligations of a party to litigation can extend not only to paper documents but also to hard drives, laptops, servers and any other media on which data might be found. A party must conduct a reasonable search for, and disclose, documents which are relevant to the case and this will increasingly have to include a search for categories of electronic information. It is therefore vital to have in place a suitable electronic document retention and management policy.

The issue of the use and management of electronic information in court proceedings has been of considerable importance for some time and its significance continues to grow. We are all aware of the volume of electronic information generated both by businesses and individuals. With the continuing evolution of technologies such as the BlackBerry and other means of communication, the amount of electronic data changing hands will continue to increase. Problems can arise if caution is not exercised, as there is much more to electronic data than meets the eye.

The Commercial Litigators’ Forum has suggested that electronic data can be divided into four categories:

  • active data (that which is readily accessible);
  • replicant data (temporary files created by computer systems);
  • back-up data (created as part of a firm’s business recovery plan); and
  • residual data ("deleted" material which, nevertheless, remains recoverable).

In addition, we are becoming more and more familiar with the term "metadata", which is unseen information contained within electronic documents, such as the time and date of creation, author, details of who has accessed the document and what amendments have been made. All of this information is of potential interest to others.


As part of the standard litigation process, parties are required to conduct a reasonable search for (and give disclosure of) all documents upon which they rely and/or which adversely affect or support either party’s case. The parties provide each other with a list of documents disclosed, supported by a ‘disclosure statement’, setting out the extent of the search and reasons why certain documents are being withheld. In light of the vast amount of information contained within electronic documents and communications, questions arise as to where the line is to be drawn for the purposes of disclosure.

Under the Civil Procedure Rules (CPR), a "document", for the purposes of disclosure, is the physical entity on which information is stored (CPR 31.4). In the context of electronic documents, this could include hard drives, laptops, servers and other media, on all of which various types of data (including metadata) might be found.

In determining whether a search for documents is reasonable, the court will have regard to the number of documents (including electronic documents) concerned, the nature and complexity of the case, the ease and expense of retrieval and the significance of any particular document. In view of the potentially enormous scope of disclosure exercises in complex cases, issues will clearly arise as to what constitutes a ‘reasonable’ search and whether the extent, time spent and costs associated with a particular search are proportionate. Litigants will also have to consider issues of confidentiality and privilege where, for instance, a hard drive is disclosed which contains a variety of information.

The Cresswell Working Party (in which Barlow Lyde & Gilbert participated) produced a report in late 2004 which led to the amendment of the Commercial Court Rules on disclosure and resulted in the release in October 2005 of a new Practice Direction on e-disclosure. Parties are now actively encouraged to discuss likely sources of electronic information, computer systems and storage policies at an early stage in litigation and should seek to agree both the scope of disclosure and how the costs of the search will be shared. The parties are also encouraged to address by what method disclosed documents will be inspected - whether paper printouts will suffice, or if electronic versions need to be produced. The Litigation Support Technology Group (LiST) is now working on a protocol to set common standards for cost-effective e-disclosure, which should help in reducing disputes about whether a search for relevant documents has gone far enough or is otherwise proportionate.

An effective means of avoiding uncertainties lies in ensuring that businesses have suitable document retention and document management policies in place, which will allow important documents to be located and easily retrieved, at minimum expense. Failure to put in place such policies may mean that vital evidence which may support your own case, or destroy that of your opponent could be lost. All relevant documentation, in whatever form, should of course be preserved from the moment litigation is contemplated.

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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