Insights

Disclosure in an Electronic Era

Written by Peter Atkinson, Rebecca Arnheim
23/09/2014

The purpose of the disclosure process during litigation is to make evidence available which either supports or undermines your or the other party’s case. Being able to handle electronic evidence properly means that only truly contentious issues are pursued to trial, settling other matters in advance and saving on costs and time.

There are also additional advantages to technology-assisted review:

  • reduction in review time due to predictive coding technology;
  • decreased risk of duplication; and
  • ability to maintain reasonable search parameters.

Under the Civil Procedure Rules ‘anything in which information of any description is recorded’ constitutes a document. An electronic document is defined as ‘any document held in electronic form’ including:

  • e-mail, text messages, voicemail, word-processed documents and databases;
  • calendar, spreadsheet or presentation files;
  • instant messaging and recorded telephone lines;
  • documents stored on portable devices (e.g. laptops, dictaphones, memory sticks and mobile phones) and on servers and back-up systems (including off-site storage);
  • deleted documents;
  • metadata (data about data); and
  • other embedded data which isn’t typically visible (including author, date and time of document creation).

The parties are required to submit a document to the court showing the areas of agreement and disagreement, enabling more realistic deadlines to be set.

When does electronic disclosure apply?

Electronic disclosure is now standard in most cases. Solicitors for each party may have to conduct a detailed review of the systems and working practices. This could include interviewing key members of staff, instructing technology specialists and undertaking site visits.

Co-operation is more important than ever, as it is now mandatory for parties to discuss e-disclosure as soon as litigation is contemplated, including document preservation, the parameters of the disclosure search and the format for the inspection.

Key concerns are outlined below.

Volume

Given the volume of information now stored electronically, there is concern that the new obligations could expose parties to high costs. However, as with standard disclosure, a party is only required to make a reasonable search for the relevant documents.

For corporate organisations, there is a real need for proper functionality from their software, and for engagement between lawyers and IT professionals. A clear policy on e-mail use is also advisable to avoid unwanted e-mail exchanges being caught.

Keyword searches

It is reasonable to search by keywords if it is agreed between the parties and a full review of each document would be excessive.

Social networks

Content of social networks can fall within the wide definition of ‘document’. Whether it will be disclosable will depend on its relevance to the issues in the case.

Will evasive communications channels be used to avoid e-disclosure?

It seems unlikely as information must be ‘captured’ for it to be caught within the definition of ‘document’. Browsing the internet does not seem to be encompassed.

Forensic analysis of digital archives

Although some underlying metadata will be disclosed with copies of electronic documents, a party requesting disclosure of additional metadata or forensic images must demonstrate that its relevance and materiality justify the cost and burden of producing it.

Key lessons

Where the parties failed to take steps towards preserving contemporaneous telephone and e-mail records and failed to discuss e-disclosure, the judge reduced the costs to 50% for the party in whose favour he found (Earles v Barclays Bank plc, 2009).

In Re Atrium Training Services Ltd (2013), some relevant documents were omitted due to the mistaken belief by one party that the versions they held were copies rather than originals. The court held that, because this had not been done in bad faith, a reasonable search had still occurred. The search had been extensive, completed within the specified time, explained in detail to the other party and based on a methodology agreed in court.

This ruling shows the judiciary being more tolerant of trivial errors in e-disclosure than previously. The courts are not likely to sympathise with technicalities regarding disclosure in high value cases (Re Atrium concerned a £50m alleged fraud) where a reasonable and proportionate search has been undertaken in good faith.

Contact the Author

Peter Atkinson

Rebecca Arnheim

Gordon Dadds