View source

From Edisclosure

You do not have permission to do that, for the following reason:
The action you have requested is limited to users in the group user.
You can view and copy the source of this page:
This web page lists resources relating to electronic disclosure (mainly from an English perspective).

==England and Wales==

===Lord Justice Jackson's Civil Litigation Costs Review===

Lord Justice Jackson is carrying out a [http://www.judiciary.gov.uk/about_judiciary/cost-review/index.htm review] of the costs incurred in civil litigation.  His [http://www.judiciary.gov.uk/about_judiciary/cost-review/preliminary-report.htm Preliminary Report] (volume 2), published on 8 May 2009, contains a detailed discussion of electronic disclosure and of the costs which may be incurred.  His Final Report, containing his recommendations is [http://www.judiciary.gov.uk/about_judiciary/cost-review/reports.htm here].  Recommendations on disclosure:[http://www.arzinger.ua/?lang=en legal support Ukraine]

: 77 E-disclosure as a topic should form a substantial part of (a) CPD for solicitors and barristers who will have to deal with e-disclosure in practice and (b) the training of judges who will have to deal with e-disclosure on the bench.

: 78 A new CPR rule 31.5A should be drafted to adopt the menu option in relation to (a) large commercial and similar claims and (b) any case where the costs of standard disclosure are likely to be disproportionate. Personal injury claims and clinical negligence claims should be excluded from the provisions of rule 31.5A.

[http://chrisdale.wordpress.com/2010/01/15/first-thoughts-on-the-edisclosure-implications-of-the-jackson-report/ Comments by Chris Dale.

===Amendments to the Practice Direction for Disclosure in the Civil Procedure Rules===

[http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm Part 31 of the Civil Procedure Rules of England and Wales] deals with disclosure and inspection of documents.

The substantive aspects of e-disclosure, such as the extent of the documentation which should be searched for and disclosed, were considered in 2004 by a Working Party chaired by Mr Justice Cresswell.  That Working Party produced its report in October 2004. The report is available [http://www.hmcourts-service.gov.uk/docs/electronic_disclosure1004.doc here].

The Working Party's recommendation was implemented initially in the Commercial Court (of which Mr Justice Cresswell was until his retirement one of the Judges): see [http://www.hmcourts-service.gov.uk/cms/842.htm Commercial Court Guide]. 

The [http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part31.htm#IDAQDVRD Practice Direction for CPR Part 31] was amended with effect from 1 October 2005 so that these recommendations now apply in all Divisions: the amendments to the Practice Direction are [http://www.justice.gov.uk/civil/procrules_fin/contents/frontmatter/notes40.htm here].

A working party chaired by Senior Master Whitaker has prepared a draft Practice Direction on electronic disclosure to the Civil Procedure Rule Committee.  It will come into force on 1 October 2010.  It is referred to [http://www.justice.gov.uk/civil/procrules_fin/index.htm here] and available [http://www.justice.gov.uk/civil/procrules_fin/pdf/preview/PD_Making_Document_53.pdf here].

The new Practice direction was summarised in Lord Justice Jackson's [http://www.judiciary.gov.uk/about_judiciary/cost-review/reports.htm Final Report] as follows:

* 2.4 Draft practice direction. The draft “Practice Direction Governing Disclosure of Electronically Stored Information” provides, in essence, as follows. [Electronically Stored Information is abbreviated in the practice direction to “ESI”.] 

: - Parties and their legal representatives should consider, at an early stage, the use of technology in order to identify potentially relevant material, to collect, analyse and review it. Subsequently this will assist with the creation of lists of documents to be disclosed and giving disclosure by providing documents in electronic format. 

: - Unless a party intends to request that the action be allocated to the small claims track or the fast track, that party must exchange with the other party or parties and file with the court Answers to the ESI Questionnaire attached to the Practice Direction. 

: - The ESI Questionnaire requires the parties to provide information about any documents which they hold in electronic form and which are to be disclosed in the proceedings, along with details of their electronic storage systems. They are also asked to detail any issues that may arise about the accessibility of such documents. The Answers to the ESI Questionnaire must be supported by a statement of truth. 

: - After exchange of Answers to the ESI Questionnaire and before the first CMC, the parties must discuss the disclosure of ESI, including the scope of the reasonable search for ESI and any tools and techniques which might reduce the burden and cost of disclosure of ESI. 

: - If the parties encounter difficulties or cannot reach agreement, issues arising in relation to the disclosure and inspection of ESI should be referred to a judge for directions, if possible at the first CMC. 

: - The extent of the reasonable search will depend upon the circumstances of the case. The parties should bear in mind the overriding principle of proportionality. Many of the factors that may be relevant in deciding the reasonableness of a search for ESI are listed in paragraph 2A.4 of the current practice direction supplementing CPR Part 31. 

: - Where a party is giving disclosure of ESI, a List of Documents may by agreement between the parties be an electronic file in a defined and agreed format. 

: - Unless the parties agree otherwise or the court directs otherwise, where electronic copies of disclosed documents are provided to another party, the electronic copies should, unless this is not reasonably practicable, be provided in their native format. 

* 2.5 In my view, the substance of this practice direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure.

In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) Senior Master Whitaker directed the defendant to answer the questionnaire which is under consideration by the Civil Procedure Rule Committee (see paragraph 17 of the judgment), and annexed a copy as a Schedule to the judgment. The Guidance Notes and Glossary prepared by the committee which produced the questionnaire set out in the Schedule to the judgment are [http://www.scl.org/site.aspx?i=xb537 available here].

===Commercial Court Long Trials Report===
The Commercial Court Long Trials Working Party has produced a [http://www.judiciary.gov.uk/docs/rep_comm_wrkg_party_long_trials.pdf report] which includes recommendations on Disclosure (December 2007)

===The LiST Group===

The use of IT in support of civil litigation has been considered by a Working Group of [http://www.listgroup.org LiST], the Litigation Support Technology Group.  LiST has published the following [http://www.listgroup.org all available here]:

* a draft Revised Disclosure Statement (Form N265)

* a Data Exchange Protocol, dealing with the exchange of data relating to electronic disclosure Documents.

* Technology Questionnaires, for use prior to giving disclosure of documents.

===Other material===
[http://www.commerciallitigatorsforum.com/ The Commercial Litigators' Forum] produced a [http://www.sjberwin.com/clf/pdf/electronicdisclosure1004.pdf paper on e-disclosure] in October 2003 (updated in October 2004).

[http://chrisdale.wordpress.com/ The e-Disclosure Information Project] - commentaries by Chris Dale.

==English case-law relevant to electronic disclosure==

<I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2009] 2 All ER 1094 , Chancery Division, Morgan J., 23 October 2008, reviews many of the points which may arise when an application is made for additional disclosure of electronic documents.  These points are mentioned under the various headings below.  See also a [http://chrisdale.wordpress.com/2008/10/26/case-law-at-last-on-scope-of-reasonable-search/ commentary] by Chris Dale, and [http://www.scl.org/editorial.asp?i=1994 another] by Clive Freedman (may be restricted to members of Society for Computers and Law). The disclosure exercise carried out by the defendants required in situ searches in various countries and was said to have cost some £2 million in fees together with disbursements of some £175,000, and to have taken some 6,700 man hours of lawyers' time (at [25]).

In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) the Judge imposed costs sanctions on the successful defendant for failure to conduct disclosure satisfactorily (see [[#Costs]] below).  He said (at [71]):

<BLOCKQUOTE>"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 practise them; it is <U>gross</U> incompetence not to."</BLOCKQUOTE>

See commentaries on <I>Earles</I> by [http://chrisdale.wordpress.com/2009/10/09/costs-penalty-for-non-compliance-with-e-disclosure-obligations/ Chris Dale] and [http://www.scl.org/site.aspx?i=ne13274 SCL].

===Preservation of documents===
* In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [27]-[30] the Judge stated that before proceedings are commenced there is a duty not to destroy documents deliberately, but no duty to preserve documents, whereas after the proceedings have been commenced documents must be preserved.  If they are not preserved, adverse inferences may be drawn. Failure to preserve documents before commencement of proceedings may result in costs sanctions: see [69].

* See also [[#Costs]] and [[#Sanctions]] below.

===Standard disclosure===
* The importance of restricting disclosure to standard disclosure was stressed in ''Nichia Corp v Argos Ltd'' [http://www.bailii.org/ew/cases/EWCA/Civ/2007/741.html &#91;2007&#93; EWCA Civ 741] (Jacob LJ dissenting), at [45-52], [72-73] and [77].

* <I>Digicel (St Lucia) Ltd v Cable and Wireless plc</I> [http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html &#91;2008&#93; EWHC 2522 (Ch)], [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [46]: "... it must be remembered that what is generally required by an order for standard disclosure is "a reasonable search" for relevant documents. Thus, the rules do not require that no stone should be left unturned. This may mean that a relevant document, even "a smoking gun" is not found. This attitude is justified by considerations of proportionality. This point is well made by Jacob LJ in <I>Nichia Corporation v Argos Limited</I> [http://www.bailii.org/ew/cases/EWCA/Civ/2007/741.html &#91;2007&#93; EWCA Civ 741] at [50] to [52]."

* ''Nichia'' was also cited and followed by Ramsey J in [http://www.bailii.org/ew/cases/EWHC/TCC/2009/3601.html Vector Investments v Williams] [2009] EWHC 3601 (TCC) (05 November 2009)] [2009] EWHC 3601 (TCC) (at [84] and [93]).

* In ''Abela v. Hammonds Suddards'' [http://www.lawtel.com Lawtel], 2 December 2008, Deputy Judge Paul Girolami QC held at [110-113] that a party giving disclosure was not required to reduce the difficulties caused by the listing of a large quantity of documents by categories by separately listing documents which supported his own case and documents which supported the other party's case.

===The need for cooperation===
* Where party fails to cooperate with the other party in relation to disclosure, but instead takes a unilateral decision as to the scope of disclosure to be provided, that party may (subject to consideration of proportionality) be ordered to carry out a second search, significantly increasing the costs incurred in giving disclosure: <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [47, 53, and 93-95].

* The Judge criticised the lack of cooperation in <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [31] and [70].

* In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) Senior Master Whitaker directed the defendant to answer the questionnaire which is under consideration by the Civil Procedure Rule Committee (see para 17 of the judgment), and annexed a copy of the questionnaire as a Schedule to the judgment. The Guidance Notes and Glossary prepared by the committee which produced the questionnaire set out in the Schedule to the judgment are [http://www.scl.org/site.aspx?i=xb537 available here].

* In [http://www.bailii.org/ew/cases/EWHC/TCC/2009/3601.html Vector Investments v Williams [2009] EWHC 3601 (TCC)] (05 November 2009)] [2009] EWHC 3601 (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 [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.'''"

===Reasonable search===
*  Whether a reasonable search has been carried out must be decided by the court, either in advance of the search being done, or with hindsight, where a search had been carried out and its extent was challenged by the other party: <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [51-53].

* In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [69]-[72] the Judge criticised the failure to procure copies of emails, and stressed the solicitor's duty to take appropriate steps to ensure that sufficient disclosure is given.

* In <I>[http://www.bailii.org/ew/cases/EWHC/Comm/2009/1435.html Noble Resources SA v Gross]</I> [2009] EWHC 1435 (Comm) [57]-[58], SMS messages were obtained from backups of BlackBerries.  A forensic examination of BlackBerries also revealed fragments of SMS messages.

* In [http://www.bailii.org/ew/cases/EWHC/Admin/2009/2387.html Al-Sweady, R (on the application of) v Secretary of State for the Defence] [2009] EWHC 2387 (Admin) the court criticised the Ministry of Defence for failing to carry out a sufficient search for documents, and emphasised the importance of an adequate document retrieval system, to avoid the waste of much public money and court time. [http://chrisdale.wordpress.com/2010/04/15/al-sweady-v-secretary-of-state-for-defence-blame-for-e-disclosure-failures-gets-personal-and-public/ Commentary by Chris Dale]

* Late disclosure in two other cases:

** Judicial review: late disclosure by OFSTED in the Shoesmith judicial review case - costs of attending hearing related to late disclosure awarded to claimant on the indemnity basis: [http://www.bailii.org/ew/cases/EWHC/Admin/2009/B35.html Shoesmith, R (on the application of) v OFSTED] [2009] EWHC B35 (Admin); [http://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Shoesmith, R (on the application of) v OFSTED] [2010] EWHC 852 (Admin).  See paragraphs 19-22 of the judgment and Appendix 2. Foskett J referred to "the wholly inadequate way in which Ofsted's duty of candour was addressed initially in this case." [http://chrisdale.wordpress.com/2009/12/15/the-baby-p-case-may-be-the-disclosure-story-of-the-year/ Commentary by Chris Dale].  [http://chrisdale.wordpress.com/2010/04/23/shoesmith-loses-judicial-review-but-disclosure-candour-questions-remain-open/ Second commentary by Chris Dale]

** Criminal prosecution of BA by OFT [http://chrisdale.wordpress.com/2010/05/11/late-disclosure-of-e-mails-ends-ba-price-fixing-trial/#more-3260 Commentary by Chris Dale]

* See also [[#Proportionality]] below.

===Proportionality===
* In <I>Hands v. Morrison Construction Services Ltd</I> [2006] EWHC 2018 (Ch), ([http://www.lawtel.com Lawtel]), the applicant offered to meet the cost of pre-action disclosure of a large quantity of electronic documents, but Briggs J. declined to make the order sought, on the ground that it would be excessively burdensome.

* Proportionality was considered in [http://www.bailii.org/ew/cases/EWCA/Civ/2007/741.html ''Nichia Corp v Argos Ltd'']  [2007] EWCA Civ 741 (Jacob LJ dissenting), at [54-55], [61-64], [73-74], [82] and [90].

* In <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [59-70, and 93-95], the court considered whether it was proportionate to require a second search to be carried out, of back-up tapes and for additional keywords.

* Proportionality was considered in ''Abela v. Hammonds Suddards'' [http://www.lawtel.com Lawtel], 2 December 2008, Deputy Judge Paul Girolami QC, at [114-124].

* In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [32] and [68] the Judge held that a Bank had incorrectly decided that a search for particular documents would not be proportionate.

* In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) the defendant opposed giving disclosure of electronic documents on the ground of proportionality.  Senior Master Whitaker did not accept this, and directed the defendant to answer a questionnaire to assist in identifying the categories and locations of electronic documents so that an appropriate order for disclosure could be made.  A copy of the questionnaire was annexed as a Schedule to the judgment.

* See [[#Back-up tapes]] below, re Fiddes v Channel 4.

===Back-up tapes===
* Recovery of back-up tapes was considered in <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [45, 54-70].  The parties' solicitors were ordered to meet to discuss how best the restoration of the back-up tapes could be done, having regard to degree of difficulty and cost.

* Recovery of e-mails from back-up tapes was considered in ''Abela v. Hammonds Suddards'' [http://www.lawtel.com Lawtel], 2 December 2008, Deputy Judge Paul Girolami QC at [114-124].  The Judge expressed doubts whether the process would be as difficult and costly as the defendants suggested, at 122.

* In <I>[http://www.bailii.org/ew/cases/EWHC/Comm/2009/1435.html Noble Resources SA v Gross]</I> [2009] EWHC 1435 (Comm) [57]-[58], SMS messages were obtained from backups of BlackBerries.  A forensic examination of BlackBerries also revealed fragments of SMS messages.

*  In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [41] the Judge held that emails should have been recovered from backup tapes.

* In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) the judge referred at [15]-[16] to the expense involve in restoring backup tapes.

* In [http://www.bailii.org/ew/cases/EWCA/Civ/2010/516.html Fiddes v Channel 4] (28 January 2010), 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 [http://www.bailii.org/ew/cases/EWCA/Civ/2010/516.html Court of Appeal approved the decision] on 24 March 2010: [2010] EWCA Civ 516.

* In Picard (Representative of Bernard L. Madoff Investment Securities LLC) v FIM Advisers Llp [2010] EWHC 1299 (Ch) (27 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2010/1299.html 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===
* In <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [72-92], the court directed that additional keyword searches should be carried out.

* In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) the judge directed that there should be sampling to see how the initial list of 31 keywords should be fine-tuned (at [24]-[25]). 

* (The following U.S. case draws attention to the need for cooperation between parties when selecting keywords, and to the precautions which may be required: [http://www.nylj.com/nylawyer/adgifs/decisions/042809peck.pdf William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co.] No. 07 Civ. 10639, 2009 WL 724954 (S.D.N.Y. March 19, 2009).  For a commentary on this case and other U.S. cases referring to keyword searches see http://www.law.com/jsp/legaltechnology/PubArticleFriendlyLT.jsp?id=1202430262330 ).

===Date ranges===
* In <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [71], the court directed that a date range should be varied.

* In Picard (Representative of Bernard L. Madoff Investment Securities LLC) v FIM Advisers Llp [2010] EWHC 1299 (Ch) (27 May 2010) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2010/1299.html the court decided what should be the appropriate date range for disclosure (disclosure under Article 21 of Schedule 1 to the Cross-Border Insolvency Regulations 2006)

===Individual email accounts===
* In <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [93-95], the court directed that additional email accounts should be searched.

===Sampling, incremental or staged approach===

* The possibility of adopting an incremental approach to the search was considered in ''Nichia Corp v Argos Ltd'' [http://www.bailii.org/ew/cases/EWCA/Civ/2007/741.html#para74 &#91;2007&#93; EWCA Civ 741], at [74].

* In [http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html#para65 <i>Digicel</i>] at [65]-[70] the judge's order reflects a staged approach.

* In [http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)] [2009] EWHC B41 (QB) the defendant opposed giving disclosure of electronic documents on the ground of proportionality.  Senior Master Whitaker did not accept this, and directed the defendant to answer a questionnaire to assist in identifying the 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." (at [22]). He referred to sampling at [25].

* In the US, a staged approach was agreed in In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008) in order to avoid production of documents "somewhere in the neighborhood of a pile 137 miles high". See e.g. article at http://www.ediscoverylaw.com/2008/06/articles/case-summaries/finding-waiver-of-attorneyclient-privilege-and-work-product-protection-court-orders-production-of-attorney-notes-of-employee-interviews-concerning-intels-compliance-with-evidence-preservation-obligations/.

===Privilege===

* A neutral repository may assist when setting up a protocol to avoid disclosure of privileged material: see [http://www.strozfriedberg.com/files/Publication/994aaca8-2ca8-4b4b-994c-0d863368db50/Presentation/PublicationAttachment/abe526cc-27df-4bd1-a892-02bcebd8013a/WhatJeffersonTaughtUs.pdf article on the protocol developed for the Jefferson investigation in the USA].

===Databases===

* It was held in <I>Derby v Weldon</I> [1991] 1 WLR 652 that a computer database containing information capable of being retrieved and converted into readable form was a "document", so that the court could order discovery under Order 24 of the Rules of the Supreme Court.

* In <I>Marlton v Tektronix UK</I> (10 February 2003, available on [http://www.lawtel.com Lawtel]), Pumfrey J confirmed that a computer database may be treated as a "document" in the context of disclosure under the Civil Procedure Rules, and held that disclosure should be given of documents which established the date on which e-mails had been received.

===Metadata===

* An order for disclosure of metadata was made in a case where it was alleged that a record of a meeting had been made long after the event: <I>Hellard v Money</I>, Lewison J (Ch. D), 28 April 2008.

===Cross-border data transfers, and blocking statutes===

* In December 2007, a French court rejected an appeal in case in which a lawyer had been fined 10,000 Euros for contravening a blocking statute: [http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1209459934853 see article].

* In <i>Madoff Investment Securities LLC, Re </i>[2009] EWHC 442 (Ch), [2009] 2 BCLC 78 (27 February 2009) http://www.bailii.org/ew/cases/EWHC/Ch/2009/442.html the court authorised the transfer of data to New York by the Madoff liquidator on the grounds of public interest, necessity for the purpose of, or in connection with, any legal proceedings, and necessity for the purposes of establishing, exercising or defending legal rights.

* In <i>re Global Power Equip. Group, Inc.</i>, 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009) a U.S. court ordered a Dutch company to provide discovery pursuant to Federal Rules of Civil Procedure, despite the contentions that it was prevented from producing the requested information by the French Blocking Statute and that the procedures under the Hague Evidence Convention were mandatory as a result. See [Blocking Statutes] below.  See [http://www.ediscoverylaw.com/2009/11/articles/case-summaries/court-compels-discovery-from-foreign-corporation-pursuant-to-federal-rules-of-civil-procedure/ article].

* [http://chrisdale.wordpress.com/2009/11/24/parallel-and-cross-border-developments-in-handling-electronically-stored-information/ Comments by Chris Dale] on cross-border transfers and the Hague Convention.

* A French Court decided in December 2009 that an employer could read an employee's personal emails on his work computer as the emails had not been marked "private".  See [http://chrisdale.wordpress.com/2010/02/22/the-extent-of-te-right-to-privacy-in-french-employee%E2%80%99s-e-mails/ commentary by Chris Dale].

===Hard copy trial bundles and photocopying===

* In ''[http://www.bailii.org/ew/cases/EWHC/TCC/2008/2220.html#para1671 Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd]'' [2008] EWHC 2220 (TCC) the trial bundle contained 550 ring binders and the cost of photocopying approached £1 million - see at [1671].

===Case management===

* In [http://www.bailii.org/ew/cases/EWHC/TCC/2010/409.html Elliott Group Ltd v GECC UK] [2010] EWHC 409 (TCC) Coulson J held that it would require a very strong case for the trial to be adjourned merely because the claimants' disclosure was a more extensive task than they had originally contemplated.

===Costs===

* In <I>Grupo Torras S.A. v. Al-Sabah</I> [1998] Masons CLR 90 (decided pre-CPR), 50,000 documents were scanned into electronic form, from which compact discs could be made.  Mance J. held that since the plaintiffs had scanned the documents for their own purposes, they could not charge any part of the scanning costs to other parties, but only the costs of cutting and supplying the compact discs. The costs of the scanning could in due course form part of the plaintiffs’ reasonable costs of the action if the plaintiffs were in due course awarded costs. The Judge said that a party scanning documents into a database could apply to the court for an order regulating matters, including the basis of charging for copies, in advance of scanning the documents.

* In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [75]-[77] the Judge decided that the successful defendant should recover only 50% of its costs as a result of failure to conduct disclosure adequately.

* Late disclosure by OFSTED in the Shoesmith judicial review case - costs of attending hearing related to late disclosure awarded to claimant on the indemnity basis: [http://www.bailii.org/ew/cases/EWHC/Admin/2009/B35.html Shoesmith, R (on the application of) v OFSTED] [2009] EWHC B35 (Admin); [http://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Shoesmith, R (on the application of) v OFSTED] [2010] EWHC 852 (Admin) - see paragraphs 19-22, 43 and Appendix 2. [http://chrisdale.wordpress.com/2009/12/15/the-baby-p-case-may-be-the-disclosure-story-of-the-year/ Commentary by Chris Dale].  [http://chrisdale.wordpress.com/2010/04/23/shoesmith-loses-judicial-review-but-disclosure-candour-questions-remain-open/ Second commentary by Chris Dale]

====Cost-shifting====

* <I>Hands v. Morrison Construction Services Ltd</I> [2006] EWHC 2018 (Ch), ([http://www.lawtel.com Lawtel]), above.

* Cost-shifting was mentioned in <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [45].

* In ''Abela v. Hammonds Suddards'' [http://www.lawtel.com Lawtel], 2 December 2008, Deputy Judge Paul Girolami QC stated at [91-92] that a party's willingness to bear the costs of disclosure did not render disclosable documents which otherwise would not be disclosable.

* It is understood that cost-shifting orders have been made in some Commercial Court actions.

* Cost-shifting was considered in the US case of <I>[http://www.nysd.uscourts.gov/rulings/02cv01243_072403.pdf Zubulake v UBS Warburg LLC]</I> 217 F.R.D. 309 (S.D.N.Y. 2003).  See articles at e.g. http://grove.ufl.edu/~techlaw/vol9/issue1/evangelista.html and http://www.krollontrack.co.uk/zubulake/.

===Sanctions===

====Failure to disclose documents====

* The test for deciding whether sanctions should be applied for destroying documents before and after commencement of proceedings was considered in <I>Douglas v Hello! Ltd</I> [http://www.bailii.org/ew/cases/EWHC/Ch/2003/55.html &#91;2003&#93; EWHC 55 (Ch)], [2003] 1 All E.R. 1087, a case in which emails had been deleted.  It was held by the Vice-Chancellor at [86]: "There is, however a distinction to be drawn between those which were destroyed or disposed of before these proceedings were commenced and those which were destroyed or disposed of thereafter. With regard to the former category it is established in the very recent decision of the Court of Appeal for the State of Victoria in <I>British American Tobacco Australia Services Ltd v Cowell and McCabe</I> [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2002/197.html &#91;2002&#93; VSCA 197] paras 173 and 175 that the criterion for the Court's intervention of the type sought on this application is whether that destruction or disposal amounts to an attempt to pervert the course of justice. There being no English authority on this point I propose to apply that principle, not only because the decision of the Court of Appeal for the State of Victoria is persuasive authority but because I respectfully consider it to be right." Emails deleted before commencement of proceedings had been routinely deleted in the ordinary course of business, so there had been no attempt to pervert the course of justice and it was not appropriate to apply sanctions ([87]).  Certain emails deleted after the commencement of proceedings had been deleted deliberately, but it was not appropriate to strike out paragraphs of the Defence as a fair trial of the relevant issues was still possible ([98-104]); the court applied the dictum of Millett LJ in <I>Logicrose Ltd v Southend United Football Club Ltd</I> (The Times 5th March 1988): "I do not think that it would be right to drive a litigant from the judgment seat without a determination of the issues as a punishment for his conduct, however deplorable, unless there was a real risk that that conduct would render the further conduct of proceedings unsatisfactory. The court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice."

* <I>Marine Rescue Technologies Ltd v Burchill</I> [http://www.bailii.org/ew/cases/EWHC/Ch/2007/1976.html &#91;2007&#93; EWHC 1976 (Ch)]: failure to conduct a proper search for documents (including electronic documents) may result in the claim being struck out.

* In <I>Hedrich v Standard Bank London Ltd</I> [http://www.bailii.org/ew/cases/EWCA/Civ/2008/905.html &#91;2008&#93; EWCA Civ 905] (30 July 2008), the Court of Appeal held, rejecting an application for wasted costs against a solicitor, that negligence should be judged by "the standards of a solicitor of ordinary competence, the competence, that is, of a typical, reasonably well-informed high street solicitor ... not the Rolls Royce standards which the big City firms ... must and do uphold". Applying that standard, the solicitor had not been negligent in failing to challenge his client's assertion that e-mails had been lost and were no longer available.  See [http://chrisdale.wordpress.com/2008/12/16/is-hedrich-more-important-than-digicel-for-e-disclosure/ Chris Dale's article].

* In <I>[http://www.bailii.org/ew/cases/EWHC/Mercantile/2009/2500.html Earles v Barclays Bank]</I> [2009] EWHC 2500 (Mercantile) at [37]-[41] the Judge reviewed the cases on drawing of adverse inferences, but decided on the facts that no adverse inferences should be drawn.

* Late disclosure by OFSTED in the Shoesmith judicial review case - costs of attending hearing related to late disclosure awarded to claimant on the indemnity basis: [http://www.bailii.org/ew/cases/EWHC/Admin/2009/B35.html Shoesmith, R (on the application of) v OFSTED] [2009] EWHC B35 (Admin); [http://www.bailii.org/ew/cases/EWHC/Admin/2010/852.html Shoesmith, R (on the application of) v OFSTED] [2010] EWHC 852 (Admin) - see paragraphs 19-22, 43 and Appendix 2. At paragraph 43 of the judgment and paragraphs 25-26 of Appendix 2 the judge referred to the cases on drawing adverse inferences. Foskett J referred to "the wholly inadequate way in which Ofsted's duty of candour was addressed initially in this case." [http://chrisdale.wordpress.com/2009/12/15/the-baby-p-case-may-be-the-disclosure-story-of-the-year/ Commentary by Chris Dale].  [http://chrisdale.wordpress.com/2010/04/23/shoesmith-loses-judicial-review-but-disclosure-candour-questions-remain-open/ Second commentary by Chris Dale]

* In [http://www.bailii.org/ew/cases/EWHC/Ch/2010/2015.html Rybak v Langbar International Ltd] [2010] EWHC 2015 (Ch) the claim and defence to counterclaim were struck out following the claimant's use of secure deleletion software with the intention of deliberately deleting files which might otherwise have been retrievable.

====Failing to have meetings with the other party====

* See also [[#The need for cooperation]] above, referring to [http://www.bailii.org/ew/cases/EWHC/TCC/2009/3601.html Vector Investments v Williams] [2009] EWHC 3601 (TCC), where Ramsey J reduced the costs awarded, on account of failure to hold meetings or to apply to the court for directions.

====Fabricating documents====

* See <i>Arrow Nominees Inc v. Blackledge</i> [2000] 2 BCLC 167 [http://www.bailii.org/ew/cases/EWCA/Civ/2000/200.html BAILII]; <i>Zahoor v Masood</i> [2009] EWCA Civ 650 http://www.bailii.org/ew/cases/EWCA/Civ/2009/650.html

===Illegally or improperly obtained evidence===

* Illegally or improperly obtained evidence may be admissible: see <I>[http://www.bailii.org/ew/cases/EWCA/Civ/2009/1122.html Jones v University of Warwick]</I> [2003] EWCA Civ 151, [2003] 1 WLR 954 at [28-30].  See also:
** <I>[http://www.bailii.org/ew/cases/EWHC/QB/2007/140.html L v L]</I> [2007] EWHC 140 (QB)
** <I>[http://www.bailii.org/ew/cases/EWCA/Civ/2008/904.html Lifely v Lifely]</I> [2008] EWCA Civ 904
** <I>[http://www.bailii.org/ew/cases/EWCA/Civ/2009/1122.html White v Withers LLP]</I> [2009] EWCA Civ 1122
** <I>[http://www.bailii.org/ew/cases/EWHC/QB/2009/2024.html Imerman v Tchenguiz]</I> [2009] EWHC 2024 (QB) 
** <I>[http://www.bailii.org/ew/cases/EWHC/QB/2009/2902.html Imerman v Tchenguiz]</I> [2009] EWHC 2902 (QB)
** <I>[http://www.bailii.org/ew/cases/EWHC/Fam/2009/3486.html Imerman v Imerman]</I> [2009] EWHC 3486 (Fam), referring to a number of other recent cases 
** <I>[http://www.bailii.org/ew/cases/EWHC/Fam/2010/64.html Imerman v Imerman]</I> [2010] EWHC 64 (Fam)
** <I>[http://www.bailii.org/ew/cases/EWCA/Civ/2010/126.html Imerman v Tchenguiz]</I> [2010] EWCA Civ 126

In  Tchenguiz v Imerman [2010] EWCA Civ 908 (29 July 2010) http://www.bailii.org/ew/cases/EWCA/Civ/2010/908.html the Court of Appeal reviewed the cases and held that the improperly obtained evidence should be returned.  At paragraph 174 Lord Neuberger MR said this: "It seems to us that, where the court is satisfied that a husband has documents which may be relevant to the issue before it, but that his wife has, in some way retained copies of those documents she has wrongly obtained, it would be open to the court in an appropriate case to refuse to order the husband to produce the documents on the ground that to do otherwise would render the way it dealt with the application unfair, even taking into account the fact that the documents contain, or may contain, information which is relevant to the proceedings. Equally, it would be open to the court in an appropriate case to permit the wife to give evidence of their contents as a prelude to ordering the husband to produce them, However, on our analysis of the law, it is unlikely that questions as to use of unlawfully obtained documents will arise in the future. Hitherto the family courts have, as we have pointed out at [108], considered the question of the use of unlawfully obtained documents at a time when no prior application has been made for their delivery up, along with any copies. Now, if we are right, by the time the court comes to consider the adequacy of the husband's disclosure any wrongfully obtained documents will have been returned. The question for the court will be, in the future, the extent to which the wife's recollection of information derived from unlawfully obtained documents may be deployed to establish the inadequacy of her husband's disclosure."  Commentary by Family Law Reports here: http://www.familylaw.co.uk/articles/confidential-information-imerman-v-imerman-2010-ewca-civ-908 .

==Arbitration==

===Disclosure===

In October 2008 the [http://www.ciarb.org/ Chartered Institute of Arbitrators] published a [http://www.ciarb.org/information-and-resources/E-Discolusure%20in%20Arbitration.pdf Protocol]on Electronic Disclosure.

[http://www.ibanet.org/Document/Default.aspx?DocumentUid=68336C49-4106-46BF-A1C6-A8F0880444DC The IBA Rules on the Taking of Evidence in International Commercial Arbitration]

The ICDR Guidelines for arbitrators concerning the exchange of information: see article at http://www.adr.org/si.asp?id=5599

===Draft Protocol for exchange of written submissions by e-mail===

See [[E-mail Protocol]]

==Articles and Commentaries==

* [http://www.scl.org/editorial.asp?i=1528 "E-disclosure, Needles and Haystacks"], Alex Charlton and Matthew Lavy, Journal of Society for Computers and Law, April/May 2007 (restricted to members of [http://www.scl.org/ SCL] only).

* Chris Dale's comments on  ''Abela v. Hammonds Suddards'' [http://www.lawtel.com Lawtel], 2 December 2008, Deputy Judge Paul Girolami QC, are [http://chrisdale.wordpress.com/2008/12/18/getting-expert-search-evidence-in-front-of-the-court/ here].

* Clive Freedman's [http://www.scl.org/editorial.asp?i=1994 article] on <I>[http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html Digicel (St Lucia) Ltd v Cable and Wireless plc]</I> [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct)(may be restricted to members of Society for Computers and Law).

==Electronic Document Review==

* [http://www.ediscoveryinstitute.org/ eDiscovery Institute] a non-profit organization dedicated to resolving electronic discovery challenges by conducting studies of litigation processes that incorporate modern technologies

* [http://www.ediscoveryinstitute.org/pubs/AutoDocumentReviewReliability.pdf A comparison of automated document review with human review]

==Other jurisdictions==

===Scotland===

Web pages dealing with e-disclosure in litigation in Scotland have not so far been found.

===Ireland===

In [http://www.bailii.org/ie/cases/IESC/2007/S59.html <I>Dome Telecom -v- Eircom</I>] [2007] IESC 59, [2008] 2 IR 726 (05 December 2007) the Irish Supreme Court held by a majority that there was power to order discovery of data held in a database, but that it would be disproportionate to order discovery at that stage in the litigation.  See article at http://tjmcintyre.com/2008/01/supreme-court-ruling-on-electronic.html.

===The United States of America===

'''US legislation''' 
* [http://www.law.cornell.edu/rules/frcp/ The Federal Rules of Civil Procedure]

'''Best Practice Guidelines'''

The United States District Court for the District of Maryland (Magistrate Judge Paul A. Grimm) has produced a Suggested Protocol for Discovery of Electronically Stored Information. See http://www.mdd.uscourts.gov/localrules/localrules.html .

[http://www.thesedonaconference.org/content/miscFiles/publications_html?grp=wgs110 The Sedona Conference®] has published (amongst other publications) the following:

* The Sedona Principles Addressing Electronic Document Production, Second Edition (June, 2007)

* The Sedona Principles after the Federal Amendments, August, 2007

* The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods (August, 2007)

* The Sedona Conference® Glossary: E-Discovery & Digital Information Management (Second Edition, December 2007)

* The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible (August 2008)

* The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age (Second Edition, November 2007)

'''US case-law'''

* [http://californiadiscovery.findlaw.com/electronic_data_discovery_new_developments.html summaries of cases relating to electronic discovery]

'''Other resources'''

* [http://www.ediscoveryinstitute.org/ eDiscovery Institute] a non-profit organization dedicated to resolving electronic discovery challenges by conducting studies of litigation processes that incorporate modern technologies

* [http://californiadiscovery.findlaw.com/electronic_data_discovery.htm Discovery of electronic data], the web site of retired State Court Commissioner Richard Best

* [http://www.discoveryresources.org/ www.discoveryresources.org].

* [http://www.sochaconsulting.com/ The Socha Consulting web site] provides details of surveys and searchable information about electronic discovery and automated litigation support vendors as well as other resources for learning more about electronic discovery and automated litigation support.

* [http://www.kenwithers.com/ Ken Withers' web site] provides information on research into computer-based disclosure and discovery in civil litigation.

===Canada===

* [http://www.lexum.umontreal.ca/e-discovery/index.html E-discovery Canada]: portal for information about e-discovery in Canada.

* [http://www.lexum.umontreal.ca/e-discovery/index.html EdiscoveryCanada.com] - an educational website dedicated to the law, strategy and technology of electronic discovery in Canada.

===Australia===

* Federal Court of Australia [http://www.fedcourt.gov.au/how/practice_notes_cm6.html Practice Note CM6]: Electronic Technology in Litigation, January 2009, revised September 2009.

* [http://www.elitigation.com.au/ Seamus E. Byrne's - In Pursuit of Relevance] - Perspectives on E-Discovery Law and Litigation from an Australian Lawyer and Electronic Evidence Expert.

===Singapore===

* [http://app.supremecourt.gov.sg/data/doc/ManagePage/temp/4nuc3c45i15f0f45uffl1b55/practice_direction_no.3_of_2009.pdf Practice Direction No 3 of 2009]: This Practice Direction provides an opt-in framework for requests and applications for the giving of discovery and inspection of electronically stored documents, and the supply of electronic copies of such documents.

* Discovery and Inspection of Electronically Stored Documents: A Commentary on Practice Direction No 3 of 2009: [http://www.lawgazette.com.sg/2009-10/feature1.htm Part 1] and [http://www.lawgazette.com.sg/2009-11/feature5.htm Part 2]

* Recent developments in electronic discovery: Discovering electronic documents and discovering documents electronically [http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/DispForm.aspx?ID=417 (2007) 19 SAcLJ 101]

==The author==

This web page has been put together by [http://www.3vb.com/pgs-members/m_cfreedman.shtml Clive Freedman] (Barrister, Mediator, Arbitrator), of [http://www.3vb.com 3 Verulam Buildings], Gray's Inn, London, England.
Return to Electronic Disclosure.
Retrieved from "http://www.edisclosure.uk.com/wiki/index.php?title=Electronic_Disclosure"
View source

From Edisclosure

Views

Personal tools

Navigation

Search
