ELECTRONIC DISCLOSURE

The conduct of litigation (at least in common-law jurisdictions) has traditionally required each party to conduct a reasonable search for (and give disclosure to other parties of) all documents upon which they rely and/or which adversely affect or support any party’s case. The disclosure is carried out by serving a ‘list’ of documents, together with a ‘disclosure statement’, setting out the extent of the search and reasons why certain documents are being withheld.

Research carried out by the University of California in 2003 concluded that, even by that date, in the business world approximately 90% of documents were being created and stored electronically by word processors, email, in databases and through a variety of other devices ranging from personal computers and servers to Personal Digital Assistants (“PDAs”), mobile phone text messages, voicemails, and even computer printers, photocopiers and fax machines.  It has now become easier to communicate electronically by email, by text and other means, so much so, that it is now estimated that only 20% are being converted to hard copy.  In the face of these changes the process of disclosure pursuant to court proceedings has had to adjust accordingly. 

There has been no wholesale rewriting of the rules relating to disclosure nor have the courts attempted to fashion rules to govern the disclosure solely of “electronic” documents.

The obligation to disclose is governed by Civil Procedure Rule (CPR) 31 and is the same for both electronic documents and conventional ones. Standard disclosure requires each party to undertake a reasonable search for and disclose only:

– the documents on which he relies;

– the documents which:

1 – adversely affect his own case;

2 – adversely affect another party’s case;

3 – support another party’s case; and

– the documents which he is required to disclose by a relevant Practice Direction (PD).

The disclosure of electronic documentation has however received some special attention in the form of PDs which give guidance as to how (and just as importantly when) parties to litigation should give thought to any particular issues arising from the need to identify and disclose relevant electronic documentation.  CPR 31 PD now includes provisions (paragraph 2A) devoted to Electronic Disclosure and the Admiralty and Commercial Court has incorporated something substantially similar in its own Guide to Practice in that Court.  None of the other divisions or specialist courts have yet included additional material relating specifically to electronic disclosure but CPR 31 PD will apply to them. 

The principal issues relating to electronic disclosure may be summarised as follows

1 – The meaning of “document” in an electronic environment;

2 – The extent of the duty of search imposed by the Civil Procedure Rules;

3 – The form in which electronic documentation should be made available to other parties, i.e. on paper by printing it all out or electronically and if that latter should it be:

a. In the form in which it has been created so that, e.g. all metadata is included and available to the other party or

b. Is it permissible to convert a document (from say a “word” document to a “.pdf” file) thereby effectively removing any metadata

4. The preservation of documentation and the Destruction of electronic data.

5. Who should bear the costs of searching for and providing electronically stored information much of which may turn out to be irrelevant.

A. The meaning of “document”

What is an “electronic document”?

According to CPR 31.4; The term “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 rule goes on to explain explicitly that meaning of “documents” is not restricted to paper writings, but extends to anything upon which evidence or information is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment.

The new practice direction which was added to the CPR In October 2005, noted the broad definition of a document in Rule 31.4 and went on to note that 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 with electronic documents known as metadata. Metadata embedded in almost every document will provide the history of the document itself (i.e. such as original author, creation date, hidden notes, amendments, details of who is blind copied in to e-mails). The metadata can be altered by doing a simple act such as opening and printing a document a fact which should not be forgotten if the metadata may be important.  In such cases a ‘mirror image’ of a disk may be made which will not alter any metadata. 

It covers electronically stored information or documents including:

– e-mails and other electronic communications

– word processed documents

– databases.

Documents readily accessible from computer systems and other electronic devices and media (including PDAs, mobile telephones, voicemail systems) have to be disclosed as do those documents stored on servers and back-up systems, electronic documents that have been “deleted” and the additional information stored and associated with electronic documents known as metadata. 

The parties may need to provide information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by them and their document retention policies. 

B. The duty to make a reasonable search 

The practice direction relating to electronic disclosure provides as follows:-

The existence of electronic documents impacts upon the extent of the reasonable search required by Rule 31.7 for the purposes of standard disclosure. The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following:–

(a) The number of documents involved.

(b) The nature and complexity of the proceedings.

(c) The ease and expense of retrieval of any particular document. This includes:

(i) The accessibility of electronic documents or data including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents.

(ii) The location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents.

(iii) The likelihood of locating relevant data.

(iv) The cost of recovering any electronic documents.

(v) The cost of disclosing and providing inspection of any relevant electronic documents.

(vi) The likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection. [e.g. Metadata]

(d) The significance of any document which is likely to be located during the search.

It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

In view of the potentially enormous scope of disclosure exercises in complex cases, issues will clearly arise as to what constitutes a ‘reasonable’ search and whether the extent, time spent and costs associated with a particular search are proportionate. Litigants will also have to consider issues of confidentiality and privilege where, for instance, a hard drive is disclosed which contains a variety of information.

In a fraud case, for example, the authenticity of documents may be in doubt and certain types of electronic information such as metadata may be crucial. However, in a dispute relating to the interpretation of a particular policy provision, documentary evidence may be less relevant and it may be disproportionate to spend too much time and money interrogating computer systems for data. 

What is clear is that parties cannot ignore information stored electronically when conducting their search for documents. Clients are required to sign a disclosure statement verifying the extent of the search they have carried out. These statements will inevitably prove to be a fertile source of attack from the other side if a party is unable to justify why it has chosen to limit its search in a particular way.

When considering the duty of search it should be borne in mind that what is sought is information and this may be stored in various forms some of which may be difficult to retrieve and read.  CPR r.31.7 does not attempt to lay down any detailed code in this regard, but does specify a litmus test of reasonableness.  This has the virtue of flexibility and takes account of the overriding objective.  The principal categories of electronically held information have varying degrees of accessibility which may change from case to case depending upon a party’s electronic management and storage systems. The Cresswell report suggested the following 5 categories, although these are not exhaustive:

1 – Active or online data:

2 – Embedded data:

3 – Replicant data (otherwise known as “temporary files” or “file clones”): 

4 – Back-up data:

5 – Residual data: 

Whilst active data should be relatively accessible and it is not usually difficult to carry out a key word search for relevant information, the other forms of data are less accessible.    In the case of residual data it may even be argued that it is not within a party’s control within the meaning of CPR r.31.8.  Even if it is to be regarded as being in a party’s control the cost and burden of retrieval (often with the assistance of an expert) means that an application for such disclosure needs to be properly justified and confined.  

The “disclosure statement”, required by CPR 31.10(6) has always required a party, inter alia, 

– to set out the extent of the search that has been made to locate documents which he is required to disclose ;

– to certify that he understands the duty to disclose documents; and

– to certify that to the best of his knowledge he has carried out that duty”.

Disclosure statements have tended to be brief and often did not state the extent to which documents holding information held in electronic form have been searched. 

A new disclosure form (N265) now requires a party to state whether it carried out such an electronic search and to state by list what was searched and the extent of that search.  The Civil Procedure Rules now require a party not just to comply with the old rules of search and disclosure, but also to state whether in its search for documents it has searched:-

– Databases;

– Back up tapes;

– Mobile phones ;

– Notebooks;

– PDA devices;

– Portable data storage media;

– Servers;

– Off site storage lap tops;

– Hand held devices for electronic documents that might be relevant to the issues.

The form then requires the party disclosing to identify which electronic databases it had not searched.  Listed are all the databases mentioned above but N265 further requires the party to say specifically whether it has searched for these databases for:-

– Documents

– Mail files

– Calendar files

– Spreadsheet files

– Document files

– Web based applications

– Graphic files and presentation files.

If an electronic search has been carried out by reference to a key word or words, or concept, then those key words and concepts have also to be disclosed.  Searches for electronic documents using keywords or concepts may be reasonable even where a full review of each and every document would not.

C. Case Management Issues

The Commercial Court Rules on disclosure and the new Practice Direction on e-disclosure actively encourage the parties to discuss likely sources of electronic information, computer systems and storage policies at an early stage in litigation and to agree both the scope of disclosure and how the costs of the search will be shared.   Courts will typically be reluctant to order any one party to bear all the costs of the search at an interim stage although it may be willing to make such a costs order at the trial when the necessity for the search and the usefulness of the material obtained can be better assessed.

The parties are also encouraged to address by what method disclosed documents will be inspected – whether paper printouts will suffice, or if electronic versions need to be produced. If the latter the ‘electronic’ format chosen may well be crucial to determining whether metadata will be accessible.  The conversion of, for example, word documents to “.pdf” format makes metadata inaccessible.  

D. Some other special considerations 

E-documents need to be collected from source. Depending upon a client’s IT capability, this can be done in-house or by a third party specialist. There are of course often numerous evidential problems with using in-house IT specialists and therefore on some occasions it may be necessary to interrogate the client’s systems with computer forensic specialists who will need to be employed to make a cloned copy. There are various third party specialists such as MD5 of Wakefield These specialists make a cloned or forensic copy which can then be used as a “master copy” for evidential purposes. Once electronic data has been collected it can be screened with a view to identifying the relevant computer documentation and files created by relevant people. IT experts are able to filter the data to identify potentially relevant documents by the use of subject or key word searches. It is also possible to remove duplicate documents and blank pages thereby reducing the overall volume of documents to be reviewed by the lawyers. After the screening process has been completed, images of the electronic data can be loaded onto the same database as hard copy documents (which can be scanned once they have been sorted and cross referenced to their original source). 

It will be desirable for there to be agreement between the parties on the use of technology for document disclosure purposes, including the basis of charging for or sharing the cost of the provision of electronic copies of e-documents and the exchange of disclosure data in an agreed electronic format using (where appropriate) agreed fields. It is important to be able to demonstrate to the Court and the other party to the litigation that an appropriate strategy for disclosure has been complied with.

There will also have to be co-operation between the parties as to the format in which electronic copy documents are to be listed on disclosure and provided on inspection with the court taking an active role in managing this process.

The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.

Virtuoso Legal is a niche solicitors’ firm specialising in all forms of legal advice connected to Intellectual Property (IP), including Copyright Protection and Infringement, plus Information Technology and Commercial Law.

 

We are a truly virtuoso firm of solicitors. We are highly recommended as Intellectual Property specialists in the leading legal reference sources Chambers and Partners and Legal 500. 

 

Address: Virtuoso Legal, 31 Harrogate Road, Leeds, LS7 3PD 

 

Tel: 0113 237 9901 / 0844 800 8871 

 

Fax: 0844 800 8872

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