[The Civil Procedure Rule Committee has published a new Practice Direction 31B: Disclosure of Electronic Documents. The document is available here.
Unless the Court orders otherwise, the Practice Direction will only apply to proceedings started on or after 1st October 2010. Until then paragraph 2A.1of Practice Direction 31A continues to apply to proceedings started before that date.
The schedule to the new PD 31B contains the Electronic Documents Questionnaire which appears to be in the same format as that appended to the judgment of Master Whitaker in Goodale v Ministry of Justice.
Many lawyers are already using the questionnaire which will become part of the rules in October. Until then, the notes below are still relevant.]
In a nutshell
The approach to search and disclosure of documents within the UK is determined by reference to Part 31 of the Civil Procedure Rules:
www.justice.gov.uk/civil/procrules_fin/
The key rules governing search and disclosure are Parts 31.6 and 31.7.
In summary, these require that the parties make a reasonable search for documents which they will rely upon in court as well as those which adversely affect their own case; adversely affect another party’s case; or support another party’s case. The factors relevant in deciding the reasonableness of a search include the number of documents involved; the nature and complexity of the proceedings; the ease and expense of retrieval of any particular document; and the significance of any document which is likely to be located during the search.
Further, where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, they must state this and identify the category or class of document.
A closer look
Rule 1, the overriding objective is to enable the courts to deal with cases justly. This includes ensuring that cases are dealt with in a way which is proportionate to, amongst other things, the amount of money involved. It also involves dealing with cases expeditiously and fairly and allotting to each case only the appropriate amount of the court’s resources.
Rule 1.2 provides that the court must seek to give effect to the overriding objective when it exercises any power it is given by the rules.
Rule 1.3: the parties are required to help the court to further the overriding objective.
Rule 1.4 contains 12 areas where the court must actively manage cases including making use of technology, identifying issues early and encouraging the parties to co-operate.
Turning to the court’s case management powers in Rule 3, we find Rule 3.4(2)(c): the court may strike out the statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or order.
In passing it is probably worth mentioning the new Practice Direction 5C Electronic working
This PD provides for a scheme of electronic working to operate from April 10th 2010 (interestingly a Saturday when most practitioners will expect the courts to be closed! The explanation is that as an electronic scheme it is intended to operate 365/24/7). The scheme will apply to those cases which are proceeding in a number of the different divisions of the High Court including the TCC, the Chancery Division, the Admiralty courts, the Patents, Bankruptcy and Companies Courts, the Commercial and London Mercantile Courts. It will apply to those claims started on or after 10th April 2010 and those started or continued under the pilot scheme which operated between 1st April 2009 and 31st March 2010.
The PD gives detailed rules how to start and proceed with claims but disappointingly at this stage provides for trial bundles to continue to be lodged in paper format!
Returning to the CPR, Part 31 deals with disclosure and inspection of documents.
Rule 31.5 deals with standard disclosure.
Rule 31.6 explains what standard disclosure means; broadly there is an obligation to disclose the documents on which a party seeks to rely and the documents which adversely affect his own case or the case of one of the other parties or those which support the case of another party.
Rule 31.7 deals with the extent of the search for documents which has to be undertaken. It is to be a reasonable search. The factors relevant to deciding what is reasonable include the number of documents involved, the nature and complexity of the case, the ease and expense of retrieval of a particular document and the significance of any particular document which might be revealed as a result of the search.
Rule 31.9 provides for a disclosure statement. The cases make it clear that this aspect is considered to be as important as any of the other rules. The courts have adopted a policy of “name and shame” potentially causing grave embarrassment to those who complete the statement and are then found wanting. (See for example the cases of Al-Sweady and Sharon Shoesmith below). The person completing the statement has to set out the extent of the search carried out to locate the documents which must be disclosed, he/she has to certify that they understand the duty to disclose and that to the best of his/her knowledge the duty has been carried out.
There is a practice Direction related to Part 31 (there is a new PD in draft currently with the Rules Committee).
Rules 2A.1 to 5 deal specifically with Electronic Disclosure. For example Rule 2A.1 defines what is meant by a document in electronic terms. It is a broad definition.
Rule 2A.2 provides that, before the first CMC, the parties should discuss any issues which may arise regarding the searches for and the preservation of electronic documents.
This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.
Rule 2A.3 provides that the parties should cooperate at an early stage as to the format in which any electronic documents are to be disclosed. Further if there is any disagreement the assistance of the court is to be sought at the earliest practical date, if possible at the first CMC.
If ever there was an area of the CPR which has been more honoured in the breach than in the observance it is the regime for electronic disclosure laid down in the PD and the courts have until recently taken a benign view of such breaches! NO LONGER! (See the judgments in Earles v Barclays Bank and Goodale v Ministry of Justice).
Rule 2A.4 sets out the factors which may be relevant in assessing the reasonableness of the search for electronic documents to be carried out. These factors include the ease and cost of retrieval, the number of documents and their location and the likelihood of locating relevant data.
Rule 2A.5 deals with the possibility of keyword searches and offers the possibility of other types of electronic search.