8
E DISCLOSURE
1. Edisclosure is the disclosure of electronically stored information. Knowledge of Edisclosure in accordance with PD31B is a basic essential for a litigator:
‘those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to.’ [1]
2. Whilst the scrutiny of electronically stored information (ESI) has long been a feature of commercial disputes, it is now a firm feature of all types of civil litigation. Computers are ubiquitous both in the office and at home, the ESI contained on them must form part of a disclosure exercise. Omission is negligent.
3. A ‘document’ means anything in which information of any description is recorded.[2]
As CPR PD 31A para 2A makes clear, electronic documents include
(1) email and other electronic communications
(2) word processed documents
(3) databases[3]
(4) documents readily accessible from computer systems and other electronic devices and media
(5) documents stored on servers and back-up systems
(6) electronic documents that have been deleted
(7) metadata[4] (additional information stored and associated with electronic documents).[5]
DOES IT REALLY APPLY TO MY SORT OF CASE?
4. Practice Direction 31B applies to multi-track cases with any cause of action.
5. Tchenguiz v Imerman [2010] ECA Civ 908 (29 July 2010) was a divorce case. The wife's brothers provided office facilities to their sister's husband, and decided to help her by taking documents kept by the husband on their computer systems. They instructed their own lawyers to review them for privilege, and then provided them to their sister's lawyers. The case involved a number of important issues[6] which are outside the scope of this paper. The Master of the Rolls refuted the suggestion that the parties to divorce proceedings were exempt from the general rules of disclosure - the so-called ‘Hildebrand rules’ had been used by family lawyers to justify the covert abstraction of a spouse's documents. If you have good reason to fear that documents will be concealed or destroyed, he said, then seeking an injunction is the appropriate course, as it is in any other litigation.
6. Edisclosure has also featured for example in
(i) product liability cases involving a large pharmaceutical group action
(ii) clinical negligence cases involving opiate dependent prisoners
(iii) tortious actions against employers
(iv) breach of confidence actions.
WHERE ARE THE RELEVANT DISCLOSURE RULES AND HOW HAS THE COURT APPLIED THEM?
7. Part 31 CPR deals with the disclosure and inspection of documents.[7] Practice Direction 31B which deals specifically with the Disclosure of Electronic Documents took effect on 1 October 2010.
WHAT DOES PRACTICE DIRECTION 31B SAY?
Purpose and Scope
8. The Practice Direction encourages and assists the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner. [Para 1 at 2]
9. Unless the court orders otherwise, the Practice Direction only applies to proceedings
(1) that are (or are likely to be) allocated to the multi-track. [Para 1 at 3]
(2) which began on or after 1st October 2010 [para 1 at 4]
General Principles [Para 6]
10. Electronic Documents should be managed efficiently to minimise cost. Technology should be used to ensure that document management activities are undertaken efficiently and effectively. Disclosure should be given in a manner which gives effect to the overriding objective.
11. Inspection of electronic documents should be in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure.
12. Disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.
Preservation [Para 7]
13. As soon as litigation is contemplated, legal advisers must warn their clients to preserve disclosable documents including Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.
14. The duty to preserve disclosable documents is not a new duty, but it is nevertheless an important reminder that electronic documents may need affirmative action to prevent deletion
15. The duty to preserve ESI once litigation has been contemplated, but not before, is now well-established. PD31B confirms the status quo. In Earles v Barclays Bank plc [2009] EWHC 2500 (08 October 2009) the claimant challenged a bank’s right to make five transfers. He sought repayment of the sums that had been transferred and consequential losses. The bank produced no documents relating to its authority to make transfers, but relied instead on oral evidence. The bank successfully defended the claim, but lost a significant proportion of its costs. HHJ Simon Brown QC explained that time and costs had actually been wasted: the trial would have been shorter without dependence on oral evidence and might not have been necessary at all if the documents had been produced. HHJ Simon Brown QC emphasised the duty on the parties to equip themselves for reasonably foreseeable litigation. He said:
‘The abundance of this ESI in cyberspace means that potential litigants, in particular organisations such as Banks at the current time, need to anticipate having to give disclosure of specifically relevant electronic documentation and the means of doing so efficiently and effectively.’ [Para 21][8]
Litigants should prepare the evidence in their cases properly, including edisclosure:
‘It might be contended that CPR 31PD 2A and electronic disclosure are little known or practised outside the Admiralty and Commercial Court. If so, such myth needs to be swiftly dispelled when over 90% of business documentation is electronic in form. The Practice Direction is in the Civil Procedure Rules and those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to.’ [Para 71]
Pre-CMC Discussions [Paras 8 and 9]
16. Before the first CMC, the legal advisers must discuss the use of technology in the management of Electronic Documents and the conduct of proceedings, in particular for the purpose of—
(1) creating lists of documents to be disclosed;
(2) giving disclosure by providing documents and information regarding documents in electronic format; and
(3) presenting documents and other material to the court at the trial.
17. In practice, once a claim is intimated, the legal adviser should immediately (even before discussions with the other side)
(1) discuss the clients' general document retention policy
(2) advise the client about their obligations to preserve anything which may be relevant to this case and as to the scope and import of the certificate which they (not just you) will have to sign in due course. Warn that they cannot now alter the potential document population.
(3) define ‘document’ to your client.
(4) Identify other existing sources of "documents" eg back ups, text messages, Blackberries, USB pen drives and web chat threads.
(5) find out where the documents are stored.
(6) Consider protective privileged documents
(7) guesstimate the number of electronic documents and the likely cost of retrieving them.
18. Before the first CMC the parties and their legal representatives must also discuss the disclosure of Electronic Documents. In some cases (for example heavy and complex cases) it may be appropriate to begin discussions before proceedings are commenced. The key points for discussion include
(1) Categories, systems and document retention policies
(2) The scope of the search
(3) Tools and techniques to reduce the burden and cost
(4) The preservation of Electronic Documents
(5) Data exchange formats for electronic documents and data
(6) The format in which Electronic Documents are inspected
(7) The basis of charging for or sharing the cost
(8) Whether a neutral electronic repository is appropriate[9]
19. The tools and techniques for reducing the burden and cost of disclosure include:
(1) limiting the categories of documents to be disclosed eg date ranges, particular custodians of documents, particular types of documents)
(2) keyword searches
(3) agreed software tools
(4) method to identify duplicate documents
(5) data sampling[10]
(6) methods for identifying privileged documents and other non-disclosable documents, redacting documents and inadvertently disclosed non-disclosable documents.
(7) Staging edisclosure.
failing to cooperate
20. It is clear from the above that the parties must cooperate with each other over disclosure. If a party unilaterally decides the scope of the disclosure it will provide, that party may be ordered to carry out a second search: Digicel (St Lucia) v Cable & Wireless per Morgan J [at paras 47, 53, and 93-95]. Similarly, HHJ Simon Brown QC in In Earles v Barclays Bank plc criticised the lack of cooperation between the parties [at paras 31 and 70]. In Vector Investments v Williams [2009] EWHC 3601 (TCC) Ramsey J (05 November 2009) (TCC)], Ramsey J reduced the costs awarded on account of difficulties caused by failure to meet, or to apply to the court for directions [at paras 90-93]:
"90. At the outset I observe, first, that Hammonds raised in correspondence a number of times the need for a meeting to discuss disclosure and inspection. Whilst there were telephone calls there was no meeting. In cases such as this, where there are large volumes of documents, I consider it is essential for the parties to discuss the scope and extent of disclosure in advance. It is regrettable that this did not happen in this case.
91. Secondly, there are references in the correspondence to possible applications to the court in relation to the issue of the way in which the documents were disclosed. Again, I consider that if major problems arise on inspection the parties should apply to the court so that issues are raised and dealt with at the time. Whilst I quite understand the parties are reluctant to be diverted from such activities as inspection by having to make a court application, issues can often be brought to a head and resolved by the court instead of dealing with them in lengthy correspondence between the parties."
Back-up tapes
21. The recovery of back up tapes has been considered by the Court in various circumstances:
(1) in Digicel the parties solicitors were ordered to meet and discuss how best the restoration of the back up tapes could be done having regard to the degree of difficulty and cost [see paras 45, 54-70]
(2) SMS messages have been obtained from backups of BlackBerries, and a forensic examination of BlackBerries also revealed fragments of SMS messages: see Noble Resources SA v Gross [2009] EWHC 1435 (Comm) [at paras 57-58].
(3) Emails should have been recovered from back up tapes according to the Judge in Earles v Barclays Bank.
(4) In Goodale the judge took account of the cost of restoring back up tapes
(5) Similarly, in a libel action Tugendhat J held in a libel action that it would not be proportionate to require backup tapes of emails to be restored, at an estimated cost of £10,000:
"21. I accept that in an ideal world, the claimant should have disclosure of the emails sought. But it is not an ideal world. In this case, it is a matter of speculation whether the search that he requests I order would produce anything relevant, and if it did, whether it would help the Claimant’s case or undermine it. There will undoubtedly be cases where retrieving and searching back up tapes will be a proportionate exercise in a libel action. But in this case, it seems to me, that the issues in the action will be most likely to be resolved on the contemporaneous documents that have been disclosed and the oral evidence of the Claimant and the Third Defendant, if the case gets that far. In my judgment, the claimant cannot in the present case show that there is a sufficient likelihood of retrieving any email that is both relevant and significant and on that basis, I dismiss this application."
The Court of Appeal approved the decision on 24 March 2010: [2010] EWCA Civ 516.
(6) In Picard (Representative of Bernard L. Madoff Investment Securities LLC) v FIM Advisers LLP [2010] EWHC 1299 (Ch) (27 May 2010)[11] the court decided that it would not be appropriate to order disclosure of documents in back-up storage at that stage (disclosure under Article 21 of Schedule 1 to the Cross-Border Insolvency Regulations 2006).
Keyword Searches
22. Similarly, the Court has had to consider whether to order keyword searches in various cases:
(1) In Digicel Morgan J directed that additional keyword searches should be carried out;
(2) in Goodale the judge directed that there should be sampling to see how the initial list of 31 keywords should be fine-tuned [see paras 24-25].
(3) In the Iraqi Civilian Employees Litigation Master Whitaker said:
‘I always worry about key words and their use and I am very concerned that we are going to end up with thousands – hundreds of thousands – of documents for review, which is going to be completely disproportionate. ‘
23. PD 31B itself warns that keyword searches are best used together with other technology. The amount of documentation generated risks being overwhelming.
Date ranges
24. Obviously the adoption of a date range limits the documents that will be disclosed. Although the parties are supposed to agree this, the Court can be quite interventionist:
(1) In Digicel Morgan J directed a variation of the date range;
(2) In Picard the Court itself imposed a date range for disclosure
Sampling, incremental or staged approach
25. The Court has been increasingly attracted to a staged approach to disclosure.
(1) In Nichia Corp v Argos Ltd the court adopted an incremental approach [see para 74]
(2) In Digicel a staged approach was adopted [see paras 65 – 70]
(3) In Goodale the MOJ resisted giving disclosure of electronic documents on the grounds of proportionality. Master Whittaker directed the MOJ to answer a questionnaire to identify categories and locations of electronic documents so that an appropriate order for disclosure could be made:
"I am quite content that the four key witnesses that have been named by the claimants are the right people whose ESI needs to be searched. Numerous other witnesses and custodians of documents have been mentioned but in a case like this, I do not think that searching the ESI of all of them immediately is the right way to go about this exercise. 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. Very often an opposing party will get everything they want from that without having to go down the pyramid any further, often into duplicate material. If necessary we can go on to consider other documents such as minutes of meetings etc that may be held centrally which might show what, if any, discussions took place as to what the policy and practice of the defendant should be. Any other potential sources of material likely to be relevant will very likely come to light when the questionnaire referred to in paragraph 14 above is completed." [para 22]. He referred to sampling at [para 25].