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Civil Procedure Rules 53rd Update Part 31; Disclosure and Inspection of Documents New Practice Direction 31B

30 September 2010
The facts

A new Practice Direction has been introduced with the intention of encouraging and assisting the parties to reach agreement in relation to the disclosure of electronic documents in a proportionate and cost effective manner.

Electronic documents are defined as “any document held in electronic form”. It includes “email 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 backup systems and documents that have been deleted. It also includes metadata and other imbedded data which is not typically visible on screen or a print out.”

The Practice Direction is intended to apply only to cases allocated or likely to be allocated to the Multi Track and will only apply to proceedings started on or after 1st October 2010.

The most notable aspects of the new Practice Direction are:

General principles

i) The Practice Direction emphasises the importance of proportionality in disclosure and effective management of electronic documents in order to minimise cost. Technology therefore should be used to ensure that “document management activities are undertaken efficiently and effectively”. It specifically provides that disclosure of documents which are of no relevance to proceedings “may place an excessive burden in time and cost on the party to whom disclosure is given”.

ii) The parties legal representatives are obliged to notify the client as soon as litigation is contemplated of the need to preserve disclosable documents, including electronic documents, which might otherwise be deleted in accordance with document retention policies or in the ordinary course of business.

iii) The parties have to communicate as to the use of technology and disclosure, and before the first case management. In certain heavy and complex cases, this discussion might appropriately be had before proceedings are commenced. The Practice Direction lists the matters that should be included in the discussion where appropriate:-

a) Categories of documents, computer systems, electronic devices and media on which any relevant documents may be held, storage systems and document retention policies;

b) The scope of the search;

c) The tools and techniques to be used to reduce the burden and cost of electronic disclosure, including limitation of the categories of documents sought for, the agreement of key word searches, the use of agreed software tools, the use of data sampling (the process of checking data by identifying and checking representative individual documents), the method used to identify privileged documents, and the use of a staged approach to disclosure;

d) The preservation of electronic documents;

e) The exchange of data in an agreed electronic format, using agreed fields,

f) Format;

g) The basis of sharing the cost or charging for the provision of electronic disclosure and whether it would be appropriate to use the services of a natural electronic repository for storage.

To assist the parties they may use the electronic documents questionnaire annexed to the new Practice Direction.

If the parties cannot agree, the Court will give written directions in relation to disclosure or order a separate Hearing. In doing so, the Court may at that point order the parties to complete and exchange the electronic documents questionnaire. It should be noted that the Practice Direction provides for the person signing the questionnaire to attend the first case management conference and any subsequent Hearing at which disclosure is likely to be considered. The Practice Direction gives guidance as to the nature of the reasonable search that has to be undertaken in respect of electronic documents. It lists a number of factors (which are not exclusive) including the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval – including the accessibility of documents, particularly taking into account alterations or developments in hardware or software systems used by the disclosing party and also the location of the documents, data server, etc; the likelihood of locating the relevant data; the cost of recovering, disclosing and providing inspection of any relevant electronic documents; and the likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection.

The availability of documents from other sources and the significance of any documents likely to be located. It indicates that it may be reasonable, according to circumstances, to decide not to search for documents coming into existence before a particular date or to limit the search to documents in a particular place or to documents falling into particular categories. It also indicates that a staged approach may be appropriate, with initial disclosure limited to certain categories, which may subsequently be extended or limited, depending on the results obtained. The primary source of disclosure is reasonably accessible data. Parties seeking specific disclosure of electronic documents not reasonably accessible will have the burden of demonstrating that the relevance and materiality justify the cost and burden of retrieving and producing it.

Whilst it indicates that it may be reasonable to search for electronic documents by means of key word searches, it warns that such searches may be insufficient and that “injudicious use” of key word searches may result in failure to find important documents and may find excessive quantities of irrelevant documents. The parties therefore are advised to consider supplementing key word searches with additional techniques, such as individually reviewing certain documents or categories of documents and taking such steps as may be required to justify the selection to the Court. It also gives guidance as to the format of disclosure.

Disclosure data should be set out in a single continuous table or spreadsheet, each separate column containing exclusively one of the following types of disclosure data:

a) Disclosure list number (sequential);
b) Date (see document type);
c) Document type
d) Author of the sender;
e) Recipient;
f) Disclosure list number (of any parent or covering document).

With regard to provision of documents on disclosure, again the parties are required to cooperate at an early stage as to format, and in the case of disagreement, the matter should be referred to the Court for directions. Save where otherwise ordered or agreed, electronic copies should be provided in their native format in a manner preserving metadata. (Any additional metadata sought should be for a party to request, that party being obliged to demonstrate the relevance and materiality of the requested metadata and justify the costs and burden of producing it.) A party should provide any available searchable OCR versions of electronic documents with the original (unless they are providing redacted documents). If a party is providing redacted or altered documents it is obliged to inform the other party and ensure that the unredacted and unaltered version is preserved for inspection if required.

The approach taken in the Practice Direction is in fact foreshadowed by the decision of Master Whittaker in November 2009 in Goodale v Ministry of Justice, in which the Master considered the approach to and the extent of electronic disclosure. In that case, there had been no agreement by the Defendants at all for the production of documents stored electronically. In that case, noting that whilst there was no legal difference in the disclosure test to be applied to documents held electronically and paper documents, there was a distinction in that electronic documents had a habit of being of far greater volume, were more easily created, had many duplicates, and were difficult to find so that the cost of search was likely to be much higher than for paper documents. Accordingly, he suggested a staged approach, beginning with the search for electronically stored information in respect of four key witnesses. “In terms of a search one should always start with the most important people at the top of the pyramid, that is, adopt a staged or incremental approach…” and involving 31 suggested key words. The purpose of that would be to give an idea of the potential number of documents and thereafter specialist software might be used which could de-duplicate material and cut it down to a more sensible size.

Comments

This is a quietly revolutionary document. Clearly, the effect on the broad run of personal injury actions is going to be negligible but in those cases – frequently involving Public Authorities – where e-disclosure will be particularly relevant, it is likely to be onerous and practitioners will have to give rather more serious consideration to its ramifications than perhaps we have done in the past. In particular, clients need to be made aware explicitly of the need to preserve data. They may need to consider alterations to contracts in respect of the disclosure of data held on computers at work or mobile phones for example. Indeed, “social media” policies may need reviewing or even creating. Tweeting and twittering may need to be seen in a new light!

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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