What is e-disclosure?
Disclosure is the legal process in disputes which requires parties to hand over documents supporting or undermining their cases to their opponents. The aim is to ensure that the Court can consider the contemporaneous documents, so that it can base its decisions on a sure foundation of fact rather than subjective witness evidence.
In the past disclosing documents involved the simple process of people handing over to their opponents the paper file from their filing cabinet. In 2010, however, in the era of mass electronic communications, where people store 1,000s of emails, spreadsheets and word documents on a daily basis, use blackberries, send texts, have extensive soft copy client lists and accounting schedules, the exercise of gathering together the relevant documents has become much more complex. Disclosure has morphed in many cases into “e” or electronic disclosure. As the volume of documents held by parties to a case has spiralled, the disclosure process inevitably has become much more time consuming and costly.
What are your obligations?
The disclosure process imposes three main requirements; to preserve relevant documents when a dispute is contemplated, to search for documents and to list and produce those documents to opponents and the Court.
The search for documents should be reasonable and proportionate to the dispute. It is not the case that every document must be produced; parties are entitled to decide which searches it is reasonable to carry out taking into account the volume of material or data to be searched, the complexity of the case, the ease and expense of retrieval and the likelihood of finding significant documents. Unsurprisingly this discretionary selection of search criteria often proves highly controversial between disputing parties. This has resulted in the Courts facing increasing applications contesting the quality or quantity of the search for documents carried out. There have been a number of cases where despite substantial disclosure already having been carried out the Court has ordered that further searches should be undertaken at considerable extra time and cost.
To assist the parties and give some structure and control to the process the Court has issued the new Practice Direction, which includes a template Electronically Stored Information (ESI) Questionnaire, which parties are encouraged to complete in appropriate cases. Generally the Questionnaire will be voluntary, although the Court can order parties to complete the Questionnaire.
The Practice Direction and ESI Questionnaire provide that before the first Case Management Conference at Court, the parties must meet and discuss the disclosure of ESI, including looking at the scope of the reasonable search for ESI and any tools and techniques which might reduce the burden and cost of ESI disclosure.
The ESI Questionnaire requires the parties to provide information about any documents which they hold in electronic form and which are to be disclosed in the proceedings along with details of their electronic storage systems. They are also asked to detail any issues that may arise about the accessibility of such documents, for example that they are only available on back up tapes in Australia. The answers to the ESI Questionnaire must be supported by a statement of truth.
The emphasis is on encouraging parties to agree the scope and extent of e-disclosure at a very early stage in the dispute, or to seek directions from the Court up front, so that the position is understood and accepted by all parties.
Whilst this sounds sensible, most parties still find that when they reach the disclosure stage the extent of the task facing them is unexpected and difficult to manage. The key to being able to complete the ESI Questionnaire and being ready to sit down with the other side at an early stage to discuss the scope and practicalities of electronic disclosure is all in the internal preparation that parties complete in advance.
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