New court rules on disclosure – are your electronic documents in order?
As from today, new guidance on the exchange of electronic documents in the disclosure process forms part of the Civil Procedure Rules. The guidance will impact on the way parties deal with electronic documents in litigation. It may also have wider implications on a party's document management and retention systems.
As an increasing proportion of documents disclosed in legal proceedings are electronic, the courts have followed the example of the Commercial Court by providing guidance on how parties should deal with disclosure of electronic documents in litigation. In summary:
- The definition of "document" in the Civil Procedure Rules is confirmed to include electronic documents.
- At an early stage in proceedings the parties are expected to discuss issues relating to searches for and the preservation of electronic documents.
- The appropriate scope of the search for e-documents will vary from case to case. It may be necessary for a search of all of party's electronic storage systems to be made, although keyword searches (agreed between the parties) may be appropriate where a full search would be unreasonable.
- A new disclosure statement has been drafted that requires parties to confirm that a search of electronic data has been carried out, identifying the media searched and any limitations of that search.
Further:
- The definition of "Document" includes metadata (additional information stored with an electronic document about its properties). The Commercial Court Guide provides that "in most cases metadata is unlikely to be relevant". No equivalent comment is made in the general guidance. It is a commonly held view amongst practitioners that metadata will only be relevant where the authenticity of the document is disputed and it is to be hoped that the courts will adopt this pragmatic view.
- The guidance envisages that parties may need to provide information about storage systems and document retention policies. Document management and retention policies are becoming increasingly important in litigation, as highlighted in a number of US and Australian cases and, in England and Wales, in Douglas v Hello! (2005).
- The new disclosure statement requires parties to state which media has been searched. Therefore, the parties in litigation will need to know the scope of their electronic storage systems and be prepared to justify decisions not to conduct certain searches.
What are the implications for you?
These changes confirm that disclosure of electronic documents is to be expected as a matter of course. This means thought needs to be given to the way in which such documents are stored, where they are stored and for how long they are retained under any document retention policy. Data held not only on central servers and PCs but also on PDAs, mobile phones and other electronic devices could be relevant and disclosable in litigation.
A party with established document management and retention policies, that include e-documents, is likely to find the e-disclosure process more manageable, potentially cheaper and, arguably, more limited than a party without such systems.
Careful consideration should be given to the extent to which information is disseminated within a company and the content of that information; the more relevant electronic information that exists, the greater will be the cost of retrieving that information.
