Disclosure of Electronic Information

Over the years the Civil Procedure Rules 1998 (“the CPR”) has evolved to take into account updates in technology and the way business is conducted in the 21^st Century. Nowadays the majority of communication, whether business to business or business to consumer is done electronically, particularly by email. When parties become involved in litigation they will need to disclose all of the documents relevant to the dispute and this can often lead to large volumes of documents being disclosed.

It is therefore important for the parties, and their lawyers, to consider what documents are relevant to the issues, and to agree how to manage the disclosure of electronic documents efficiently in order to minimise the costs involved.

What is a document?

Under CPR 31.4 a “document” means anything in which information of any description is recorded; and ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

Practice Direction 31B states that ‘Electronic Document’ means any document held in electronic form. It includes, for example, e-mail and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it includes documents that are stored on servers and back-up systems and documents that have been deleted. It also includes Metadata and other embedded data which is not typically visible on screen or a print out.

Retention and preservation of documents

Parties are expected to discuss at an early stage of proceedings the preservation of electronic documents. This may involve the parties providing information on the categories of electronic documents within their control, details of their computer systems, electronic devices and media on which any relevant documents are held, the storage systems maintained by the parties and their document retention policies. If a party has a good policy for the retention and storage of electronic documentation, then the disclosure process is likely to be more manageable.

Reasonable search

When dealing with the disclosure of documents in litigation, parties are required to make a reasonable search for documents. Parties must confirm that a search of electronic data has been made, identify the media searched and identify the extent of the search and any limitations on that search. The scope of the search will depend on various factors such as the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval of any particular document and the significance of any document which is likely to be located during the search. Limited searches can be agreed between the parties where a full search would be unreasonable or unnecessary.

In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.

Costs

Electronic evidence can be potentially cheaper and easier to produce than paper documents because it can be searched using key words and the production can be made in electronic form eliminating the need for mass photocopying.

At the conclusion of the trial, or earlier if appropriate, the court should give consideration to the costs incurred in relation to the disclosure of electronic evidence and who should pay these costs having regard to the reasonableness and proportionality of the disclosure, the relevance of the disclosure given and the conduct of the parties generally.

What should you be doing?

You should ensure that you have a structured retrieval system, which clearly identifies all personnel who may have generated or received electronic documentation within the business.

If you have any questions on the disclosure of electronic documentation, for further information please contact Jill Lawton on 01689 887855 or by email jill.lawton@cwj.co.uk.