Increasingly, business to business communication is done electronically , particularly by email. On 29th September 2005, an update to Part 31 of the Civil Procedure Rules 1998 (“ the CPR”), which deals with the disclosure and inspection of documents by parties involved in litigation, was issued to deal with the changing business environment. The latest update to the CPR now provides information on the disclosure of electronic documentation in litigation.
What is a document?
A broad definition of a “document” was already contained in the CPR;
“ ‘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.”
The update to the CPR extends the definition to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been deleted. It also extends to additional information stored and associated electronic documents known as metadata.
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.
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?
- Records of all electronic devices used by staff should be kept in order.
- Thought should be given to the way in which electronic documents are generated, how these documents are stored, where the documents are stored and how these should be retained. Proper archiving systems are essential to ensure access to relevant files.
- 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, please contact Nasima Khalique on 01689 887877 or by email at nasima.khalique@cwj.co.uk
