Electronic Disclosure

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This web page lists resources relating to electronic disclosure (mainly from an English perspective).

It has been written by Clive Freedman (Barrister, Mediator, Arbitrator), of 3 Verulam Buildings, Gray's Inn, London, England. Clive Freedman was a member of the Working Party chaired by Senior Master Whitaker which was set up by the Civil Procedure Rule Committee, and which prepared drafts of Civil Procedure Rules Practice Direction 31B and the Electronic Documents Questionnaire. He also contributed to the TeCSA eDisclosure Protocol for use in the TCC.

LATEST NEWS AND CASES

  • Latest e-disclosure cases reported on BAILII (this search is not 100% precise: it may show irrelevant cases, or miss relevant cases)
  • #Protocol for use in the TCC. The objective of the Protocol and Guidelines is "to provide valuable and informed guidance to TCC users on current best practice for giving E-Disclosure in the TCC. Such guidance is designed to enable users to fully understand and meet their E-Disclosure obligations under the CPR in practice and to promote and facilitate a co-operative approach between parties to the process helpful not only to them but also to the court in ensuring that the broader case and cost management objectives are met."

Contents

England and Wales

Amendments to the Civil Procedure Rules and Practice Direction

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.

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 Commercial Court Guide.

The Practice Direction for CPR Part 31 was amended with effect from 1 October 2005 so that these recommendations applied in all Divisions.

A working party chaired by Senior Master Whitaker prepared a draft Practice Direction on electronic disclosure to the Civil Procedure Rule Committee. This came into force on 1 October 2010. It is available here.

Practice Direction 31B was summarised in Lord Justice Jackson's 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 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 available here.

New Civil Procedure Rules came into force in April 2013. The new CPR 31.5 does not apply to cases in which the first Case Management Conference takes place or is due to take place before 16 April 2013 (see Reg 22(5) in Transitional Provisions).

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Lord Justice Jackson's Civil Litigation Costs Review and Costs Budgets

Lord Justice Jackson carried out a review of the costs incurred in civil litigation. His 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 here. Recommendations on disclosure:

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.

Comments by Chris Dale.

Click here for podcast of the Annual Lecture of the Society for Computers and Law given by Lord Justice Jackson on 26 March 2012, in which he discussed the problems arising from electronic disclosure and how they may be addressed (podcast may be password-protected).

A new rule 31.5 come into force in April 2013, together with new rules on costs budgets. The new CPR 31.5 will not apply to cases in which the first Case Management Conference takes place or is due to take place before 16 April 2013 (see Reg 22(5) in Transitional Provisions).

  • The new rules are also discussed in the following article: A New Approach to Disclosure' - How do the new technologies associated with e-disclosure sit with the new regime for managing cases and costs that follows on from the Jackson Review? Article by James Morrey-Jones, Tracey Stretton and Mark Surguy, 5 Feb 2013 (may be password-protected)
  • In early 2014 I prepared a short survey to obtain information on how parties to litigation are making use of the more flexible approach to disclosure following the Jackson reforms. The results are here.

Commercial Court Long Trials Report

The Commercial Court Long Trials Working Party produced a report which included 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 LiST, the Litigation Support Technology Group. LiST has published the following 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.

Protocol for use in the TCC

An eDisclosure Protocol for use in the Technology and Construction Court has been prepared by TecSA, TECBAR and the Society for Computers & Law. This is supported by the judges of the TCC and will be launched at a seminar on 1 November 2013. The Protocol and Guidance documents, including a Guide to eDisclosure prepared by Andrew Haslam of Allvision Computing, can be seen here.

Criminal proceedings

Review of Disclosure in Criminal Proceedings, by Gross LJ, September 2011. Article on SCL website (may be password-protected)

Other material

    • 2011: Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd [2011] EWHC 3747 (Ch)
    • 2012: Fairstar Heavy Transport NV v Adkins (reversed by CA at Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886, 19 July 2013), Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC), Phaestos Ltd v Ho [2012] EWHC 668 (TCC), West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC)

Using a barrister in an e-disclosure exercise

English case-law relevant to electronic disclosure

Digicel (St Lucia) Ltd v Cable and Wireless plc [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 commentary by Chris Dale, and 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 Earles v Barclays Bank [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]):

"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 gross incompetence not to."

See commentaries on Earles by Chris Dale and Laurence Eastham (may be restricted to members of Society for Computers and Law).

The meaning of "document"

  • In Phaestos Ltd v Ho [2012] EWHC 2756 (QB) (16 October 2012) King J rejected the argument that the image of a hard disk drive should be treated as a document to be disclosed. He declined to order early disclosure on the grounds that it would not be proportionate. See [25-31] and [63-64].

Ownership of electronic documents

"69. For all these reasons I can find no practical basis for holding that there should be property in the content of an e-mail, even if I thought that it was otherwise open to me to do so. To the extent that people require protection against the misuse of information contained in e-mails, in my judgment satisfactory protection is provided under English law either by the equitable jurisdiction to which I have referred in relation to confidential information (or by contract, where there is one) or, where applicable, the law of copyright. There are no compelling practical reasons that support the existence of a proprietary right - indeed, practical considerations militate against it." Edwards-Stuart J
  • On appeal, Fairstar Heavy Transport NV v Adkins [2013] EWCA Civ 886 (19 July 2013), the Court of Appeal held that the claimant was entitled to an order for inspection of emails in the possession of a former agent:
"50. In my judgment, the judge ought to have made an order for inspection of the emails on the computer. He was not prevented from doing so by his conclusion that there was no proprietary right in the content of the emails. The absence of a proprietary right would not affect the legal right of the principal to an inspection and copying remedy against a former agent in respect of the emails. It was not necessary to decide the property issue in order to make the order for inspection or copying. To ask in a case like this the questions such as "Is there property in an email?", or "Who owns the content of an email?" is not a helpful way of stating the real issue, which is not one of ownership of property claimed against the world. The issue is one of enforcement, as between the parties, of particular rights of access by a remedy of inspection and copying, which is based on rights and duties incidental to the relationship that existed between the parties at the relevant time."

Preservation of documents

  • In Earles v Barclays Bank [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].

The scope of disclosure

"At the first or any subsequent case management conference, the court will decide, having regard to the overriding objective, and the need to limit disclosure to that which is necessary to deal with the case justly, which of the following orders to make in relation to disclosure:
(a) an order dispensing with disclosure; or
(b) an order that a party disclose the documents on which it relies, and at the same time requests any specific disclosure it requires from any other party; or
(c) an order that (where practicable), the disclosure to be given by a party on an issue by issue basis; or
(d) an order that a party disclose any documents which it is reasonable to suppose may contain information which enables that party applying to advance his own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; or
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers appropriate."

The new CPR 31.5 will not apply to cases in which the first Case Management Conference takes place or is due to take place before 16 April 2013 (see Reg 22(5) in Transitional Provisions).

Standard disclosure

  • The importance of restricting disclosure to standard disclosure was stressed in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (Jacob LJ dissenting), at [45-52], [72-73] and [77].
  • Digicel (St Lucia) Ltd v Cable and Wireless plc [2008] 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 Nichia Corporation v Argos Limited [2007] EWCA Civ 741 at [50] to [52]."
  • Nichia was also cited and followed by Ramsey J in Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009)] [2009] EWHC 3601 (TCC) (at [84] and [93]).
  • In Abela v. Hammonds Suddards [2008] EWHC 2999 (Ch), [2008] All ER (D) 22 (Dec), 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.
  • In Berezovsky v Abramovich [2010] EWHC 2010 (Comm) Gloster J declined to make an order for disclosure going beyond standard disclosure before initial disclosure had been given.

Issue-based disclosure

  • In Royal Bank of Scotland Plc v Highland Financial Partners Lp and others [2013] EWCA Civ 328 (‘’Lawtel’’), Maurice Kay LJ referred to the need for circumspection when the court is considering disclosure on an issue-by-issue basis:

182. This case has drawn attention to a matter which may become of more general importance with the amendments to the Civil Procedure Rules which came into force on 1 April 2013. They are the result of Lord Justice Jackson's Review of Civil Litigation Costs. Lord Justice Aikens has explained how the concealment or non-disclosure contrived by SG arose out of “a deliberate decision ... not to address any "quantum related issues" because they might "muddy the waters" on the liability application”: paragraph 62. In the future, there are going to be more tailor-made directions providing for disclosure on an issue-by-issue basis. This will be encouraged by the new CPR31.5(7)(c) which was introduced by the Civil Procedure (Amendment) Rules 2013. Used properly, it should result in the reduction of disclosure costs. However, practitioners and judges will have to be on their guard to ensure that issue-by-issue disclosure directions do not create a framework for injustice in which one party's perception and appraisal of a case is not handicapped by his being kept in ignorance of important material on the ground that it is only relevant to issue B but, for the moment, disclosure is only required in relation to issue A. It would not be appropriate in this judgment to give guidance as to how such potential problems should be addressed in the new context. At this stage, I merely identify the need for circumspection.

Disclosure Report

The new CPR 31.5 (effective from 1 April 2013) requires a Disclosure Report to be served. Form 263 has been issued for this purpose (see http://www.justice.gov.uk/courts/procedure-rules/civil), but as of 27 September 2013 there is no copy listed in the Ministry of Justice's list of forms or in PD4. A copy is on Millnet's website. Millnet make a number of criticisms: see http://blog.millnet.co.uk/index.php/2013/04/new-cpr-rules-format-of-disclosure-report/. Neither the CPR nor the Practice Directions expressly require N263 to be used, and CPR 4(2) permits parties to vary a form if the variation is required by the circumstances of a particular case. See also Practical Law Company at http://privateclient.practicallaw.com/1-525-2902#.

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: Digicel (St Lucia) Ltd v Cable and Wireless plc [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 Earles v Barclays Bank; [2009] EWHC 2500 (Mercantile) at [31] and [70].
  • In 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 available here.
  • In 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. "

Case management hearings

  • In 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. "
"As I have said in dealing with the appropriate costs order on other case management conferences, the parties are encouraged to bring matters before the court for resolution rather than entering into long running correspondence, with the time and costs consequences that this entails." Ramsey J in West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc at [74].
"27. I should add one final thing; the defendant's application is supported by a statement of costs which runs to £47,000 and is exclusive of VAT. This was for what was supposed to be for a one hour application and, of course, I do appreciate that a lot of work may well have had to go into the preparation of the applications that have been made. Again, I would like to encourage practitioners to seek to keep costs at a proportionate level, not only just for a pre-trial review where the costs usually are proportionate, but also for this sort of application. At least on its face, £47,000 for a disclosure application and the redaction or striking out of some parts of witness statements seems to be a very large sum of money for a one hour application."
"42. Disclosure under the Civil Procedure Rules is a continuing process. It is part of case management. It is always open to a court to revisit an earlier procedural order. If the judge's order is upheld and the appellants fail to comply with it, it would be open to them to put evidence before the court to explain their reasons for non-compliance. In particular, it would be open to them to produce further evidence in order to cast a different light on their relationship with the trustees. A judge's discretion in the exercise of case management powers is wide and it was well within the proper exercise of the judge's discretion to make the order which and when he did."
  • In Phaestos Ltd v Ho [2012] EWHC 668 (TCC) (16 March 2012) the claimants sought an adjournment of a case management hearing relating to disclosure. The court refused the adjournment and ordered costs against the claimant on an indemnity basis on the ground that the claimants had had more than enough time to deal with matters relating to disclosure. The court later made an "unless" order that the claims and the defences to the defendants' claims be struck out unless disclosure was given within approximately 3 weeks: Phaestos Ltd. v Ho [2012] EWHC 1996 (TCC) (19 July 2012) at [19]

Possession or control

  • "The fact that a wife may permit her husband to use her computer from time to time does not mean that her computer then becomes in his possession or under his control, or, even if it does, that it remains so irrevocably (even after she purports to withdraw any consent she has given)." CBS Butler Ltd v Brown [2013] EWHC 3944 (QB) (16 December 2013) at [57].

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: Digicel (St Lucia) Ltd v Cable and Wireless plc [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008, at [51-53].
  • In Earles v Barclays Bank [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 Noble Resources SA v Gross [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 Atheer Telecom Iraq Ltd v Orascomm Telecom Iraq Ltd, 5/9/2014, Lawtel, a company was ordered to provide a more detailed disclosure statement, giving a more comprehensive explanation of the searches it had already conducted in the course of standard disclosure.

Documents on servers

  • In Saltri III Ltd v MD Mezzanine SA SICA [2012] EWHC 1270 (Comm) (Lexis) there was a factual issue concerning control over emails on a server.
  • See also BBGP Managing General Partner Ltd v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch), [2011] 2 All ER 297, [2010] 2 CLC 248, [2011] 2 WLR 496, [2011] Bus LR 466, where Norris J held that communications with a firm of solicitors remained confidential and subject to legal professional privilege notwithstanding that digital copies were stored in the email database of one of the parties, to which another party had access.

Documents stored in the cloud

  • "Head in the cloud", New Law Journal 19 July 2013: Robert Brown examineds the implications for eDisclosure when a company’s data has moved into cyberspace.

Who should carry out the search

  • In Mueller Europe Ltd v Central Roofing (South Wales) Ltd [2012] EWHC 3417 (TCC) (30 November 2012) Coulson J held that a search carried out by the Managing Director of the defendant had been inadequate. He ordered that a further search should be carried out by a suitably qualified IT consultant.
27. Pursuant to CPR Part 31, the court has power to order a search for particular documents; pursuant to new Practice Direction 31B, the court can order such a search in relation to documents held electronically. As a matter of principle, I conclude that, if an order to search for electronic documents can only be complied with if it is undertaken by somebody with expertise in that field, then the court has the jurisdiction to order that the search should be carried out by such a person; otherwise, the court will be making an order with which the party against whom it is made will never be able to comply. That would not be in accordance with the overriding objective.
Coulson J ordered that the costs of the further search for documents should be reserved:
29. ... like all applications relating to disclosure, the costs may turn on whether or not the exercise has led to a concrete result. If in fact it turns out that Mr. Clarke is wrong, and/or that there are no further documents, then the defendant may have an argument for its costs of undertaking the exercise.

Proportionality

  • In Hands v. Morrison Construction Services Ltd [2006] EWHC 2018 (Ch), (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 Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (Jacob LJ dissenting), at [54-55], [61-64], [73-74], [82] and [90].
  • In Hutchinson 3G UK Ltd v O2 (UK) Ltd [2008] EWHC 50 (Comm), [2008] EWHC 55 (Comm) David Steel J refused to order pre-action disclosure under CPR 31.16 because (amongst other reasons) the substantial estimated costs would not give rise to sufficient benefit; the costs for each of four respondents were estimated at £200,000.
  • In Digicel (St Lucia) Ltd v Cable and Wireless plc [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 [2008] EWHC 2999 (Ch), [2008] All ER (D) 22 (Dec), Lawtel, 2 December 2008, Deputy Judge Paul Girolami QC, at [114-124].
  • In Earles v Barclays Bank [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 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.
  • In most cases it would not be proportionate to expect a party to make forensic image copies of computer hard drives: "So far as the wiped hard disks are concerned, although the practice direction does refer to deleted documents and metadata, as included within the category of electronic documents, I do not consider that a party who is required to give standard disclosure is automatically required to subject hard drives to expensive forensic recovery techniques. It is in all cases a question of proportionality." Lewison J in Bilta (UK) Ltd (in Liquidation) v Nazir [2010] EWHC 3227 (Ch), 2010 WL 4737753, at [22].
  • In M3 Property Ltd v Zedhomes Ltd [2012] EWHC 780 (TCC) (26 March 2012) Akenhead J refused to make an order permitting an independent expert to examine computer devices in order to establish whether an email purporting to prove settlement of a dispute had existed or whether it had been fabricated, on the ground that this would be disproportionate.
  • In Phaestos Ltd v Ho [2012] EWHC 2756 (QB) (16 October 2012) King J rejected the argument that the image of a hard disk drive should be treated as a document to be disclosed. He declined to order early disclosure on the grounds that it would not be preportionate. See [25-31] and [63-64].
  • The new CPR rule 44.3(5) changes how proportionality is assessed. Costs incurred are considered proportionate if they bear a reasonable relationship to (a) the sums in issue in the proceedings, {b) the value of any non-monetary relief in issue in the proceedings, c) the complexity of the litigation, d) any additional work generated by the conduct of the paying party, and (e) any wider factors involved in the proceedings, such as reputation or public importance.

Back-up tapes

  • Recovery of back-up tapes was considered in Digicel (St Lucia) Ltd v Cable and Wireless plc [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 [2008] EWHC 2999 (Ch), [2008] All ER (D) 22 (Dec), 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 Noble Resources SA v Gross [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 Earles v Barclays Bank [2009] EWHC 2500 (Mercantile) at [41] the Judge held that emails should have been recovered from backup tapes.
  • In 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 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 Digicel (St Lucia) Ltd v Cable and Wireless plc [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 CBS Butler Ltd v Brown [2013] EWHC 3944 (QB) (16 December 2013) Tugendhat J held at [38] and [46-49] that a defendant should not normally be compelled to disclose all documents responding to a keyword search, without the opportunity to consider relevance. Such an order should only be made where there are substantial reasons for believing that a defendant is intending to conceal or destroy documents in breach of his obligations of disclosure under the CPR.

Technology assisted review and predictive coding

27. At the moment we are just staring into open space as to what the volume of the documents produced by a search is going to be. I suspect that in the long run this crude search will not throw up more than a few hundred thousand documents. If that is the case, then this is a prime candidate for the application of software that providers now have, which can de-duplicate that material and render it down to a more sensible size and search it by computer to produce a manageable corpus for human review – which is of course the most expensive part of the exercise. Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.
  • Blog post by Charles Holloway of Millnet, considering some of the areas of controversy surrounding the use of predictive coding (17 April 2012).
  • A commentary by Chris Dale on two case studies of electronic document review using predictive coding which were reported in 2011.
  • Article by www.e-discoveryteam.com, 4 Nov 2012. Includes myths about predictive coding.
  • Case studies by Millnet:

Date ranges

  • 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)

Email accounts and custodians

  • What is disclosure of emails in native format? Article, 2 July 2013; blog post by Bow Tie Law, 8 May 2014.

De-duplication

Sampling, incremental or staged approach

  • The possibility of adopting an incremental approach to the search was considered in Nichia Corp v Argos Ltd [2007] EWCA Civ 741, at [74].
  • In Digicel at [65]-[70] the judge's order reflects a staged approach.
  • In 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].


Privilege

  • In Stiedl v Enyo Law LLP [2011] EWHC 2649 (Comm), [2012] PNLR 4 independent counsel were appointed to identify documents which they considered to be privileged, and thereafter special counsel was appointed to represent the defendant and was permitted to see the privileged documents on a restricted basis, undertaking not, without the court's permission, to communicate to any person other than the claimant and the court the content of any of those documents.
  • Independent counsel was instructed by the supervising solicitor to carry out an initial review of potentially privileged documents, following a search order, in JSC BTA Bank v Shalabayev [2011] EWHC 2915 (Ch).
  • In Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., No. 1:10-cv-00135 TJH, 2013 WL 2384235 (D. Idaho May 1, 2013) a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. Article by K & L Gates, 6 June 2013
  • In BBGP Managing General Partner Ltd v Babcock & Brown Global Partners (20 August 2010) [2010] EWHC 2176 (Ch), [2011] 2 All ER 297, [2010] 2 CLC 248, [2011] 2 WLR 496, [2011] Bus LR 466 Norris J held that communications with a firm of solicitors remained confidential and subject to legal professional privilege notwithstanding that digital copies were stored in the email database of one of the parties, to which another party had access.

Clawback

Case-law
  • Istil Group Inc v Zahoor [2003] EWHC 165 (Ch), [2003] 2 All ER 252: summary of the legal principles and the authorities relating to injunctions restraining the use of privileged documents, at [72-94]
  • In Stiedl v Enyo Law LLP [2011] EWHC 2649 (Comm), [2012] PNLR 4 it was held that no injunction should be granted restaining solicitors from acting where privileged documents had been seen by junior lawyers or paralegals in the course of an initial review for the purpose of excluding obviously irrelevant material.
"We do not waive legal professional privilege in relation to any legal advice which has been released to you as part of the disclosure process where the document was relevant to the issues in question. In addition where documents which attract legal professional privilege have through inadvertence not been redacted, privilege is not waived in respect of those documents."
Leggatt J held at [35] that there was no evidence that this letter had been seen by the claimant's solicitors. He held, in relation to some of the documents in issue, that it would have been obvious to the reasonable solicitor that certain passages recording advice had been left unredacted by mistake, and he refused permission to rely on the unredacted documents. He gave permission for other documents to be used.
Wording for a clawback agreement
Clawback or quick peek agreements in the USA

Redactions

"23. So, the redaction has been carried out by qualified and professional solicitors who have satisfied themselves that the information redacted was either irrelevant and/or was commercially sensitive and it seems to me that solicitors on both sides are sufficiently experienced in this sort of litigation to know that simply because something is commercially sensitive does not mean to say it is not disclosable. It must be both irrelevant and commercially sensitive to justify redaction. I, for one, at least, am prepared to accept Mr Leckie's word for this, that those parts of the handwritten notes which have been redacted fall into that category. It seems to me that I cannot and should not really go behind that."
  • In West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC) criticisms were made of redactions. Ramsey J held that problems with redactions arose as a result of inadequate de-duplication and for this reason (among others) awarded costs against the claimants following deficiencies in the process of giving disclosure of electronic documents. See #Costs.
  • In Decura IM Investments LLP v UBS G London Branch (02 October 2014, Westlaw and Lawtel), Eder J said that where documents were redacted it was important for the disclosing party to provide an explanation. If the redacted information was not relevant, that was relatively straight forward. If it is asserted that the information was relevant but contained confidential material, or would breach foreign laws, it was incumbent upon the party to explain that so that disclosure could properly take place.

Lists of documents

Disclosable databases

  • It was held in Derby v Weldon [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 Marlton v Tektronix UK Holdings, Pumfrey J confirmed at [13-14] 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.
  • In Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012) Judge Richard Parkes QC said this: "28. The order sought by Mr Patel is undoubtedly intrusive. It would require Unite to allow an independent expert access to their database and to permit that expert to make an image or some other copy of the database with a view to preparation of a report limited to identification of the information sought. The first question is whether there is any power to make such an order. Mr Edwards conceded that the court has the power, while arguing that it would be neither necessary not proportionate to exercise it. No domestic authorities on the point have been brought to my attention, and it appears that no mention is made of such a step in CPR 31BPD, which governs electronic disclosure, but I was shown a passage at paragraph 9.29 of Matthews & Malek on Disclosure (Sweet & Maxwell, 2007), which asserts that the court has the power to order inspection of a database and to give access to a party's computer or to direct the provision of an imaged version of a database, but that it will only do so if it can be shown to be necessary and proportionate. The editors suggest that where it is not appropriate to allow a party to have access to the material, the court may permit inspection and interrogation of the computer system by an independent expert, who would be subject to undertakings necessary to protect the interests of the disclosing party. That, of course, is what is sought here. In my judgment, it must be open to the court, where there is reason to believe that a previous order of the court has not been fully complied with for reasons of lack of technical understanding, to make such further order as is necessary and proportionate to enable and assist the respondent to comply and to ensure that the earlier order is not frustrated by an innocent failure to understand the technical issues, which in this case concern the scope for retrieval of the deleted data. As I say, Mr Edwards did not seek to argue otherwise."

Metadata

  • An order for disclosure of metadata to a third party (under CPR 33.22(1)(b)) was made in a case where a record of a meeting had been made crated 4 years after the meeting: Hellard v Money, Lewison J (Ch. D), 28 April 2008.

Imaging of hard disk drives

  • In Marlton v Tektronix UK Holdings, Pumfrey J held at [21] that if imaging of the hard disk by a computer expert was to be arranged by the opposing party, the computer expert must be an independent expert, as the data included a substantial amount of privileged material. The standard form for a Search Order also provides in footnote 10 that the computer expert should be independent (see CPR Practice Direction 25A).

Document databases (created for giving disclosure)

39. It seems to be a feature of this sort of litigation that electronic document management is farmed out to other firms, which seems to me to be an unfortunate development, and one which is likely to increase costs unnecessarily.

[In many cases it may be impractical or not cost-effective to manage electronic disclosure internally, in view of the number of documents involved or because the latest reviewing software may not be available internally.]

OCR versions

Cross-border data transfers

  • In Madoff Investment Securities LLC, Re [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.
  • 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 commentary by Chris Dale.

Blocking statutes

France
  • 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. Translation of judgment
Hong Kong

Safe harbor in the United States

Electronic trial bundles and photocopying

  • An electronic trial bundle was used in Berezovsky v Abramovich [2012] EWHC 2463 (Comm) (31 August 2012). Gloster J said this:
34. For a case which at its centre required the proof of oral contracts and intimidation, the universe of documentation and case materials was huge. There were 20 different sets of bundles, designated from A to T, with each set in itself often comprising further subsets of bundles, and numerous numbered individual files. For example: there were 9 subsets of what were euphemistically referred to as "Selected Disclosure" bundles, of which the principal subset of chronological documents itself ran to what in hard copy was 99 lever arch files; there were 13 files of witness statements, 36 files of expert evidence addressing Russian history and Russian law, and 57 files of expert valuation reports which, in the event, the court did not need to address. Most importantly, for the trial alone, there were approximately 4000 pages of written submissions submitted by counsel.
35. The court and the parties had the inestimable advantage of having all the documentation and case materials, including daily transcripts, legal arguments and authorities presented in a highly organised web-based electronic format. This meant that it was extremely quick and easy to access all the necessary materials both in and out of court, including notes which I myself had made during the hearing. There was extensive hyper-linking, which rendered access even easier. In effect, I was able to work in a virtually paperless environment although counsel and witnesses often preferred to use hard copy materials for the purpose of cross-examination.
36. I return to this topic at the end of this judgment, but there was no doubt that electronic presentation of documentation was not only essential, given the amount of material involved, but also that it also greatly contributed to the efficient conclusion of the trial within the time allotted. Whether the facility of electronic compilation and presentation unnecessarily increases the number of documents presented to the court at trial, and whether this in itself can give rise to a potential increase in costs, is a matter for debate on another occasion. ...
1250. There were also a number of other features which significantly contributed to the smooth running of the trial. Perhaps most importantly, the extensive documentation and daily transcripts were presented in a highly organised and easily accessible web-based electronic format, with the result that, apart from reliance on hardcopy versions of the written arguments, and, to a limited extent, the expert statements, I was able to conduct what, at least so far as I was concerned, was a paperless trial. There can be no doubt that this enabled the trial to be concluded within the allotted timetable, and with the maximum efficiency. It also provided the inestimable advantage, from my perspective, of being able to access my notes made during trial, and the full galaxy of the trial bundles, from wherever I was and at whatever time of day (or night). I am extremely grateful, as, I am sure, are the other lawyers in the case, for all the technical assistance which I and they received in this respect.
Article by Addleshaw Goddard on the use of electronic trial bundles in Berezovsky v Abramovich (using Opus 2 International's Magnum system). Each hard copy of the trial bundle would have cost approx £26,000 to produce and consisted of 280 A4 volumes.

Case management

  • In 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.
  • Status of an "agreement" about e-disclosure: Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd [2011] EWHC 3747 (Ch) at [36]. Hilldyard J: "However, after anxious thought, I do not think it would be justified or fair to elevate that into a binding agreement preventing, or estopping or otherwise precluding them from requiring the ordinary entitlement to disclosure now that its need is clearer and the perception of that need is shared to some extent at least by at least one of the defendants."

Costs

  • In Grupo Torras S.A. v. Al-Sabah [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 Earles v Barclays Bank [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.
(1) The failure of a litigation support company based in India properly to review the documents which were provided for disclosure;
(2) The failure by the disclosure team properly to assemble relevant documents;
(3) The failure properly to de-duplicate the documents provided on disclosure;
(4) The failure to deal with redactions in a satisfactory manner;
(5) The failure to gather together and deal with disclosure of custodians;
(6) The failure to provide searchable OCR copies;
(7) The failure to provide appropriate searchable fields within the database.
The judge rejected the complaint in relation to OCR copies on the ground that OCR copies of pdf files are never perfect. He also rejected the complaint in relation to searchable fields. He held that the problems with redactions arose as a result of inadequate de-duplication. He held that the complaints in relation to inadequate review, improper assembly of documents, custodians and de-duplication had been established.
The judge held at [72] and [87-88] that the court had power to vary an earlier order in relation to costs when the original order had been made on the basis of erroneous information, but that there was no reason to make such an order on the facts.

Cost-shifting

  • Hands v. Morrison Construction Services Ltd [2006] EWHC 2018 (Ch), (Lawtel), above.
  • In Abela v. Hammonds Suddards [2008] EWHC 2999 (Ch), [2008] All ER (D) 22 (Dec), 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.
29. ... like all applications relating to disclosure, the costs may turn on whether or not the exercise has led to a concrete result. If in fact it turns out that Mr. Clarke is wrong, and/or that there are no further documents, then the defendant may have an argument for its costs of undertaking the exercise.
  • It is understood that cost-shifting orders have been made in some Commercial Court actions.

Budgeting for e-disclosure

New Civil Procedure Rules come into force in April 2013. These contain detailed rules relating to costs budgets in multi-track cases in the Queen's Bench and Chancery Divisions, excluding the Admiralty and Commercial Court and commercial caes in which more than £2 million is in dispute), and the County Court. Threshold raised to £10 million from 22 April 2014: http://www.lawgazette.co.uk/practice/date-set-for-costs-budget-exemption-rise/5040557.article; The Civil Procedure (Amendment No. 4) Rules 2014, SI 2014/867

  • The new rules:

Sanctions

Deficiencies in giving disclosure of electronic documents

"Unless" orders
  • In Phaestos Ltd v Ho [2012] EWHC 668 (TCC) (16 March 2012) the claimants sought an adjournment of a case management hearing relating to disclosure. The court refused the adjournment and ordered costs against the claimant on an indemnity basis on the ground that the claimants had had more than enough time to deal with matters relating to disclosure. The court later made an "unless" order that the claims and the defences to the defendants' claims be struck out unless disclosure was given within approximately 3 weeks: Phaestos Ltd. v Ho [2012] EWHC 1996 (TCC) (19 July 2012) at [19]. The claimants failed to comply with the unless order, but the court exercised its discretion to grant relief from the sanction of striking out: Phaestos Ltd v Ho [2012] EWHC 3159 (TCC) (24 August 2012).
  • In Kazeminy v Siddiqi (Lawtel, 19 Nov 2012) a party was one and a half hours late in providing a disk containing electronic documents in order to comply with an "unless" order. It was contended that the delay had been caused by an unforeseen technical problem and that no prejudice had been caused to the other party. The court held that relief from sanctions should be granted. Any problems caused by the breach could be dealt with by an order for costs.
  • In Re Atrium Training Services Ltd and Connor Williams Ltd [2013] EWHC 1562 (Ch) the court granted a fifth extension of time for disclosure, but made an "unless" order. In Re Atrium Training Services Ltd, Smailes v McNally [2013] EWHC 2882 (Ch) at [28-35] Birss J referred to the authorities on proving a breach of an unless order in relation to disclosure, and held that a reasonable search had been carried out ([37-45]) and that the list of documents was compliant with PD31B ([46-65]). There had therefore been no breach of the unless order ([74]). The decision was reversed by the Court of Appeal on 30 July 2014 on the ground that a reasonable search had not been carried out (Lawtel).
  • In Wyche v Careforce Group Plc [2013] EWHC 3282 (Comm) (25 July 2013), Walker J gave relief from enforcing an unless order where there had been minor human errors in implementing keyword searches. But see Mitchell v News Group Newspapers Ltd below.
"40. We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle "de minimis non curat lex" (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.
41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event....
47. We recognise that there are those who will find this new approach unattractive. There may be signs that it is not being applied by some judges. In Ian Wyche v Careforce Group Plc [2013] EWHC 3282, the defendant had failed to comply in all respects with an "unless" order. Walker J acceded to an application for relief under CPR 3.9 for two failures which he described as "material in the sense that they were more than trivial". But he said that they were "unintentional and minor failings in the course of diligently seeking to comply with the order". At para 61 of his judgment, Walker J said:
"The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an 'unless' order."
48. We have earlier said that the court should usually grant relief for trivial breaches. We are not sure in what sense the judge was using the word "unintentional". In line with the guidance we have already given, we consider that well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial. We share the judge's desire to discourage satellite litigation, but that is not a good reason for adopting a more relaxed approach to the enforcement of compliance with rules, practice directions and orders. In our view, once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture becomes accepted, there should be less satellite litigation, not more."
  • An "unless" order to serve a list of documents will normally be complied with by serving a list of documents unless the list is so deficient that it could be said not to have been served in good faith or to be illusory: Realkredit Danmark v York Montagu Westlaw [1998] WL 104421, Re Atrium [2013] EWHC 2882, Dinsdale Moorland Services Ltd v Evans [2014] EWHC 2 (Ch), Lakatamia Shipping Co Ltd v Nobu Su [2014] EWHC 275 (Comm)
  • Relief from an unless order was initially refused in Thevarajah v Riordan, Hildyard J, 9 August 2013 (Lawtel). At a later hearing when the disclosure obligations had been complied with, [2013] EWHC 3179 (Ch), it was held that relief from sanctions should be granted on account of change in circumstances. The Court of Appeal allowed the Appeal and held that this approach was wrong: late compliance with the order to give disclosure could not amount to a change of circumstances: Thevarajah v Riordan [2014] EWCA Civ 15 (16 January 2014).
  • In Lakatamia Shipping Co Ltd v Nobu Su [2014] EWHC 275 (Comm) the defendant served its List Of Documents at 5.16 pm when it should have been srved by 4.30 pm. Hamblen J held that this was a trivial non-compliance and granted relief from the sanction of striking out.
Order for costs against defaulting party

Failure to preserve or disclose documents

  • The test for deciding whether sanctions should be applied for destroying documents before and after commencement of proceedings was considered in Douglas v Hello! Ltd [2]003] 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 British American Tobacco Australia Services Ltd v Cowell and McCabe [2002] 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 Logicrose Ltd v Southend United Football Club Ltd (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."
  • In Hedrich v Standard Bank London Ltd [2008] 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 Chris Dale's article.
  • In most cases it would not be proportionate to expect a party to make forensic image copies of computer hard drives in order to preserve residual fragments of deleted data: "So far as the wiped hard disks are concerned, although the practice direction does refer to deleted documents and metadata, as included within the category of electronic documents, I do not consider that a party who is required to give standard disclosure is automatically required to subject hard drives to expensive forensic recovery techniques. It is in all cases a question of proportionality." Lewison J in Bilta (UK) Ltd (in Liquidation) v Nazir [2010] EWHC 3227 (Ch), 2010 WL 4737753, at [22].
  • In 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.
  • In Phaestos Ltd v Ho [2012] EWHC 668 (TCC) (16 March 2012) the claimants sought an adjournment of a case management hearing relating to disclosure. The court refused the adjournment and ordered costs against the claimant on an indemnity basis on the ground that the claimants had had more than enough time to deal with matters relating to disclosure. The court later made an "unless" order that the claims and the defences to the defendants' claims be struck out unless disclosure was given within approximately 3 weeks: Phaestos Ltd. v Ho [2012] EWHC 1996 (TCC) (19 July 2012) at [19]. The claimants failed to comply with the unless order, but the court exercised its discretion to grant relief from the sanction of striking out: Phaestos Ltd v Ho [2012] EWHC 3159 (TCC) (24 August 2012).
Drawing adverse inferences
  • In Infabrics Ltd v Jaytex Ltd [1985] FSR 75, the defendant’s evidence was that documents had not been deliberately destroyed, but that they were not there when the director of the company went to look for them, despite the fact that he had given instructions that they should be preserved. When assessing the amount of the plaintiff’s loss, the court drew inferences on the facts against the defendant, even though the onus of proof was on the plaintiff to prove the amount of its loss.
  • In Earles v Barclays Bank [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.
"19. If it is a defendant's duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant's evidence benevolently and the defendant's evidence critically. If a defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that defendant runs the risk of relevant adverse findings see British Railways Board v Herrington [1972] AC 877, 930G. Similarly a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.
20. This has been accepted law since Armory v Delamirie (1721) 1 Strange 505 the famous case in which a chimney sweep found a jewel in a chimney and left it with a pawnbroker for valuation. The pawnbroker, in breach of duty, failed to return it and could not be heard, when sued, to assert that the chimney sweep could not prove its value. The court awarded the highest sum realistically possible. A bailee's duty towards his bailor is, of course, different from an employer's duty to his employee but breach of the latter duty is not necessarily less serious than breach of the former." Longmore LJ

Failing to have meetings with the other party

Fabricating documents

Illegally or improperly obtained evidence

  • In Tchenguiz v Imerman [2010] EWCA Civ 908 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."
  • In Dar Al Arkan Real Estate Development Co v Al Refai [2012] EWHC 3539 (Comm) (12 December 2012) a without notice injunction was discharged (inter alia) because the claimant had not given the court a sufficient explanation of the claimant's use of hacked emails or of how files on a disk drives had come to be deleted.

Using a neutral third party to resolve or prevent disclosure disputes

Lord Justice Jackson's Preliminary Report (Chapter 40 paragraph 6.8) referred to the possibility of minimising the costs of disclosure by referring disputes about electronic disclosure to a specialist assessor.

"6.8 Option 7: Use of disclosure assessors. One option which merits consideration for "heavy" cases only is the use of disclosure assessors. A disclosure assessor would be an experienced lawyer appointed to assist the court in relation to disclosure. He/she could immerse himself/herself in the issues and the primary documents and identify which categories of documents on both sides truly merit disclosure. Such a person would have far more time to master the details of the case at an early stage than any case managing judge or master would have. Experienced or retired solicitors (possibly commercial solicitors in their 50's recently etired from City firms) or retired judges may be suitable for appointment as disclosure assessors. The costs would have to be shared between the parties in the first instance, but could form part of the costs in the case at the end of the day. Obviously, this would add another layer of costs, running to thousands or tens of thousands of pounds. However, in a major case where the parties are investing millions of pounds in the disclosure process, the costs of a disclosure assessor may be a drop in the ocean and may achieve substantial savings overall."

In his Final Report he said this (Chapter 37, paragraph 3.6):

"3.6 Disclosure assessors. Likewise there are strongly opposing views about the suggestion in my Preliminary Report that disclosure assessors might be used in document heavy cases. Some respondents consider that this is a very bad idea, which will add another layer of costs to no useful purpose. They argue that controlling disclosure is a judicial function, no part of which could be sub-contracted. Others take a more sanguine view. The London Common Law and Commercial Bar Association considers that this is "a very good idea and could be enormously helpful in substantial cases". In a client survey carried out by Herbert Smith LLP, 34 respondents (59%) supported the use of disclosure assessors for "heavy" cases. The Law Society takes an intermediate view on this issue:

"The use of disclosure assessors would be likely to increase costs considerably - though it might also result in significant savings in trial costs. It could usefully be piloted before a view was taken." "

No judge or High Court Master has been appointed to carry out this task, but there is nothing to prevent parties deciding to take this course and appointing an arbitrator or expert to resolve disputes about e-disclosure, or a mediator to facilitate the process of discussing issues and reaching agreement. (There is no need for the same person to be concerned with the overall merits of the dispute or other issues which may arise.)

Advantages of appointing a neutral third party in relation to e-disclosure disputes:

  1. Legal representatives sometimes adopt entrenched positions in disclosure disputes, with neither party willing to make concessions. A neutral third party can assist in achieving a dialogue between the legal representatives and a more conciliatory approach.
  2. A hearing of adisputed point relating to disclosure can be costly. In Omni Laboratories Inc v Eden Energy Ltd [2011] EWHC 2169 (TCC) the defendant had incurred costs of £47,000 on a one hour application. See #Case management hearings.
  3. Judges sometimes do not have sufficient time or sufficient understanding of e-disclosure to devise the most satisfactory resolution of a disclosure dispute in the particular circumstances of each case. An e-disclosure expert would have both time and expertise.
  4. Involving a neutral third party can prevent parties becoming bogged down in time-consuming and costly confrontational correspondence.
  5. Experience in the USA has been that the appointment of an expert (sometimes referred to as a discovery referee) at the inception of the case can prevent discovery abuses occurring: see http://california-discovery-law.com/referee%20outline.htm.

A third party may also be of assistance in carrying out a confidential privilege review, or in carrying out a neutral review of the methodology used in a computer assisted document review (for example by reviewing a sample of documents to see whether the neutral's categorisation of relevance and irrelevance corresponds to the categorisation adopted by a party).

Clive Freedman, the author of this website, is an experienced arbitrator and mediator and is available to assist parties by providing either binding decisions or non-binding facilitation in disclosure disputes. Clive Freedman's general CV, and arbitration/mediation CV

  • In Dornoch Holdings Int’l, LLC v. Conagra Foods Lamb Weston, Inc., No. 1:10-cv-00135 TJH, 2013 WL 2384235 (D. Idaho May 1, 2013) a Special Master was directed to obtain ESI (more than one million documents) from a bankruptcy trustee, to review it for privilege, and to prepare a privilege log. Article by K & L Gates, 6 June 2013

Document retention policies

  • Retention matters, artcile by James Farrell and Trevor Davies on planning document retention policies on a global basis, 13 May 2011
  • Article at www.out-law.com: companies should retain project emails and documents in a central repository for more than six years before considering deleting the information, an expert in resolving IT disputes has said. 08 Oct 2012

Arbitration

Disclosure

In October 2008 the Chartered Institute of Arbitrators published a Protocolon Electronic Disclosure.

The IBA Rules on the Taking of Evidence in International Commercial Arbitration

The ICDR Guidelines for arbitrators concerning the exchange of information

Draft Protocol for exchange of written submissions by e-mail

See E-mail Protocol

Articles, Commentaries and other links

  • eDiscovery Institute a non-profit organization dedicated to resolving electronic discovery challenges by conducting studies of litigation processes that incorporate modern technologies
  • Needles and Haystacks, Alex Charlton and Matthew Lavy, Journal of Society for Computers and Law, April/May 2007 (restricted to members of SCL only).
  • Chris Dale's comments on Abela v. Hammonds Suddards [2008] EWHC 2999 (Ch), [2008] All ER (D) 22 (Dec), Lawtel, 2 December 2008, Deputy Judge Paul Girolami QC, are here.
  • Electronic Documents in Construction Litigation: Lessons from Experience (2011) 27 Const L J 227, article by Dr Ronan Champion
  • Article by www.e-discoveryteam.com, 4 Nov 2012. Includes myths about predictive coding.

Other jurisdictions

Scotland

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

Ireland

Irish case-law

  • In Wicklow County Council -v- O'Reilly [2010] IEHC 464 the defendant applied for an order dismissing the plaintiff’s claim for failure to make discovery pursuant to orders for discovery. The court held that there had been deficiencies in the discovery, but declined to make the order sought as a fair trial was still possible.

The United States of America

US legislation

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 .

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)

U.S. District Court of Northern District of California: Court Adopts New E-Discovery Guidelines Effective November 27, 2012

Western District of Washington: new rules, including Model Agreement Regarding Discovery of Electronically Stored Information in Civil Litigation: [http://www.ediscoverylaw.com/2013/01/articles/news-updates/western-district-of-washington-amends-local-rules/ article by K & L Gates (17 January 2013)

Delaware Court of Chancery, new rules: article by Gibbons (4 February 2013)

US case-law

  • In the U.S. in the case of Da Silva Moore, et al., v. Publicis Groupe on 8 February 2012 Judge Peck acknowledged the efficacy of the use of predictive coding for making relevance determinations, whilst acknowledging that perfection is neither achievable nor required.
  • Articles on Global Aerospace Inc. et al., v. Landow Aviation, L.P. dba Dulles Jet Center, et al.

Other resources

  • eDiscovery Institute a non-profit organization dedicated to resolving electronic discovery challenges by conducting studies of litigation processes that incorporate modern technologies
  • 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.
  • Ken Withers' web site provides information on research into computer-based disclosure and discovery in civil litigation.

Canada

Australia

  • Federal Court of Australia Practice Note CM6: Electronic Technology in Litigation, January 2009, revised September 2009 and August 2011.

New Zealand

  • The NZ E-discovery Blog by Andrew King, of E-discovery Consulting, with articles on the New Zealand procedural rules.

Singapore

  • 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: Part 1 and Part 2
  • Recent developments in electronic discovery: Discovering electronic documents and discovering documents electronically (2007) 19 SAcLJ 101

Hong Kong

China

Disclaimer

This website has been produced for general information purposes only. No statement in it is intended to be relied upon when taking any action whatsoever and the author assumes no responsibility of any kind to any user of the website in respect of any such statement.

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