E-disclosure – ignore the importance of electronically stored information at your peril
Disclosure is the process whereby parties to a dispute exchange relevant documents. The importance of good disclosure cannot be underestimated; it can mean the difference between winning and losing a dispute. For financiers involved in disputes, ensuring that they make effective disclosure is complicated by them being one step removed from the disputed contract and therefore relying on the supplier to properly search for and identify all the relevant documents.
Disclosure is ordered by the court and
requires each party to disclose all the documents on which they rely as well as those which support another party’s case or which adversely affect their own case. This is a concept that can be difficult to communicate to someone holding the information you need and the searching obligations have just been increased.
Disclosure of electronic documents In a civil dispute a document is anything in which information of any description is recorded. 1 October 2010 saw the implementation of a new Practice Direction (PD31B) relating to disclosure of electronic documents. It has significantly increased the extent of the obligations to disclose documents which only exist electronically and highlights the wide range of methods of electronically storing information (ESI). Consideration must now be given to devices such as e-mail, text messaging, voicemail, word processed documents, databases, portable devices such as memory sticks and mobile phones, other electronic devices and media; personal blogs; social networking sites; twitter; PC hard drives; CD’s; DVD’s; backup tapes; USB devices; websites; legacy data sets; non-text such as audio, video and instant messaging; metadata.
What must now be done to comply with the duty of disclosure? The language of the PD31B is mandatory. To avoid penalties for taking an unreasonable approach
or being ordered to do more, more careful preparation is now required. PD31B provides that: 1. Parties should agree a sensible approach and emphasis is on the need for early and ongoing communication. There is an agenda that parties must discuss before the first case management conference or, in complex cases, even before proceedings commence. Discussions should cover: the ESI parties have in their control; the extent of the search for relevant documents; software tools and techniques to reduce the burden and cost of e-disclosure; preservation; and formats for exchanging documents. 2. Parties need to exchange information about their ESI, on what media and in what format it is stored, how it is organised, volumes and the likelihood of duplication. Lawyers will need to understand their client’s IT systems and data management practices.
3. Assessments on how far to extend the reasonable search for electronic documents and which data storage locations are reasonably accessible must be taken.
4. An Electronic Documents Questionnaire can be used as a means of obtaining and exchanging required information. Detailed information about the electronic documents and storage systems must be provided. Indications of the sources they propose searching, any technology tools and techniques suggested need to be given. The questionnaire is useful to manage e-disclosure but not compulsory. 5. Opposing parties are encouraged to reach
agreement on reasonable measures to get to key information in a case proportionately. 6. The use of technology is recommended. Software aided keyword searching/other forms of automated searching are referred to with guidance. Techniques that ensure e-disclosure is carried out proportionately are suggested, e.g. to focus on key individuals, date ranges and document sources and relying on data sampling to check the likelihood of locating relevant evidence.
The challenge for financiers The PD31B poses particular problems for financiers where they do not have direct control of the necessary evidence which makes the disclosure obligation far harder to comply with. Financiers will need full co-operation from suppliers or other parties who may hold the documents they need. An early consideration between the financier and the supplier of the requirements of PD31B will hugely assist in preparing the case and the disclosure of electronic documents in a proportionate and cost- effective manner.
Financiers should also ensure that they have their own house in order in respect of ESI: electronic documents should be managed efficiently to minimise the costs of undertaking any disclosure exercise and technology should be used to ensure document management activities are undertaken efficiently and effectively. Parties who consider e-disclosure at an early stage will ensure compliance with disclosure duties. Technical know-how is a must. Parties who ignore ESI run the risk of missing key evidence or non- compliance with the disclosure duties culminating in adverse costs orders.
Jodi Tierney Partner at
Francis Wilks & Jones LLP
jodi.tierney@franciswilksandjones.co.uk
Business Money
November/December 2010 25
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104