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E-disclosure: New rules on disclosure of electronic documents

01 October 2010

The 53rd update to the Civil Procedure Rules (CPR) is effective from 1 October 2010 and introduces changes in a large number of areas, including in relation to e-disclosure.

Of most interest to commercial litigators is the new Practice Direction 31B (the PD) on the disclosure of electronic documents. As a member of Master Whitaker’s select working group on e-disclosure, Vince Neicho, Litigation Support Manager, offers an insight into the new rules.

Master Whitaker’s working party was strongly of the view that there needed to be measures to prevent a steep upward spiral of the costs associated with e‑disclosure. The old Practice Direction 31, to be renamed “31A”, contained only a few paragraphs dealing with disclosure of electronic documents but unfortunately it was often ignored by the parties and the courts.

In England and Wales, the costs associated with disclosure typically account for about 30% of the costs of an action. Given that 97% of cases settle before trial, the actual percentage of disclosure costs in many cases is likely to be far greater. The increasing cost of e-disclosure is not just about “metadata” and “forensics”; it is more about the exponential increase in the volumes of documents that fall to be considered for disclosure and the formats of some of those documents. The use of computers is directly responsible for the new scale of documents in existence. Computers store numerous copies of a document in various guises, many of which are backed up numerous times. Computers are also responsible for encouraging a change in social behaviour, with many people engaging in incessant communication and chat, both in business and social contexts.

New measures to prevent excessive costs

The working party was mindful of the explosion of e‑discovery costs witnessed in the US and the PD contains important provisions which aim to avoid the same happening in the UK. Particular examples in the PD are:

  • the need to consider a staged approach, both in terms of custodians (retrieving documents from only the key custodians in the first instance) and the accessibility of documents (retrieving documents from the live servers in the first instance, and not reverting to back-up tapes or mining for “deleted” material);
  • when considering the reasonableness of a search, one of the factors is the ease and expense of retrieval of any particular document. This includes the accessibility of electronic documents. The PD acknowledges that the primary source of electronic documents is normally reasonably accessible data. The inference to be drawn from para 5(3) of the PD is that documents stored on back-up systems and “deleted” documents are not readily accessible;
  • expressly stating that in some circumstances it may be reasonable to search only part of a party’s systems;
  • the suggested use of keyword searches and other automated searches if a full review of every document would be unreasonable;
  • very restricted disclosure of metadata. The default position under the PD is that “additional” metadata (ie beyond metadata that is naturally disclosed as a result of disclosing a document in native format) is neither relevant nor necessary in most actions. This is the exact opposite of the position in the US where the default is that metadata is relevant in all actions, giving rise to much additional cost to the parties when preserving and retrieving documents for discovery. In the UK the additional metadata is likely to be relevant only in a dispute concerning authenticity – typically a fraud claim; and
  • the introduction of the Electronic Documents Questionnaire, which aims to prompt each party to provide information on its IT infrastructure and set-up, together with its proposed methodology for complying with its disclosure obligations, in a uniform and structured manner. Each party will also have to state what it expects of other parties in terms of meeting their own disclosure obligations. By extracting the information from each party in a structured way, the completed questionnaires, which will have to be verified by a Statement of Truth, will enable the court to reach a decision on contested disclosure issues.

Approach

The PD also seeks to end tactical manoeuvring on the mechanics of disclosure. Parties are expected to consider their disclosure obligations at a very early stage and be proactive on e-disclosure. For example:

  • for the first time there is an express reference in the rules to the need for documents to be preserved “as soon as litigation is contemplated”
  • parties must enter into meaningful discussions on various aspects of the e-disclosure process early in the proceedings to agree scope and methodology. Issues that cannot be agreed must be referred to the court, for directions, at the earliest opportunity;
  • as stated above, the Electronic Documents Questionnaire contains a Statement of Truth, to be signed by an appropriate person, who is expected to attend the Case Management Conference and any future disclosure hearings;
  • parties are expected to use technology to manage documents efficiently; and
  • normally (and except where they need to be redacted), documents should be provided on inspection in their native format, ie if it is a Word document, then it must be disclosed as a Word document. This is a real change from the current regime, under which parties have been converting their documents into a different form (sometimes just an image of the document, with no metadata attached).

If you would like to find out more about the PD and the effect it is likely to have on your organisation, or about Allen & Overy’s innovative approach to e‑disclosure, please speak to your usual A&O contact, or to Vince Neicho vince.neicho@allenovery.com.

Vince, who in addition to forming part of Master Whitaker's select working group, also personally assisted Lord Justice Jackson on the disclosure chapters of both his preliminary and final reports. He has been instrumental in outlining Allen & Overy's innovative approach to document management, The Suite of Options.

For a summary of the changes please see CPR.

Further information

This article is part of the Allen & Overy Litigation Review, a monthly update on interesting new cases and legislation in commercial dispute resolution.

For more information please speak to your usual Allen & Overy contact.