What follows is a short commentary on the major provisions of the new Practice Direction. The text of the PD may be found on the Ministry of Justice site as PRACTICE DIRECTION 31B: DISCLOSURE OF ELECTRONIC DOCUMENTS to which reference should always be made. Millnet is happy to discuss with its clients how best to proceed with the disclosure of ED.
The new PD dealing with electronic documents extends to proceedings that are (or are likely to be) allocated to the multi-track.
It makes it clear by its opening title and sentence that “this extends to electronic documents”.
Unless the Court orders otherwise, the PD only applies to proceedings started on or after 1st October 2010 and paragraph 2A.1 of Practice Direction 31A continues to apply to proceedings started before that date.
The PD contains definitions of 9 terms used in the technology world such as Data Sampling, Keyword Search, Metadata, Native Electronic Format and Optical Character Recognition (“OCR”).
The parties dealing with electronic documents (ED) must bear in mind certain general principles:
- ED are to be managed efficiently to minimise cost
- Document management is to be efficient and effective
- Disclosure is to be given in a manner which gives effect to the overriding objective
- ED should generally be made available for inspection in a form which allows the other party the same ability to review and display the documents as the party giving disclosure
- Disclosure of irrelevant documents may be costly in money and time for the party receiving them.
The PD introduces a form of litigation hold. It is the duty of the legal representatives once litigation is contemplated to notify their clients of the need to preserve disclosable documents including those documents which would otherwise be deleted in accordance with a document retention policy or in the normal course of business.
The parties must, before the first CMC, discuss the use of technology and the disclosure of ED. Note that best practice would dictate that this discussion should not be just before the CMC! Why not at the outset particularly if that furthers the overrriding objective or the general principles in paragraph 6?
Paragraph 9 contains a number of areas which need to be covered by these discussions, and of particular note is the use of a staged approach to the disclosure of ED; ie do not necessarily go the whole hog at the start. This is often referred to as the iterative approach. Modern technology does not demand that you process everything at the start and you may never need to!
The Electronic Documents Questionnaire (“the EDQ”) is to be used where the parties find it helpful. It is not compulsory, but, if used, the contents must be verified by a statement of truth and the person signing the EDQ must attend the first CMC and any subsequent hearing at which disclosure is likely to be considered. In other words that person must have sufficient knowledge of the background to the answers given in the EDQ.
NB: A sanction:
If a party gives disclosure of ED without first discussing with the other parties how to plan and manage such disclosure, the court may require that party to carry out further searches or repeat other steps which that party has already carried out.
The requirements of standard disclosure are altered by the PD. See paragraph 20 and the parties must bear in mind the overriding objective and proportionality when dealing with ED.
The PD talks about “normally reasonably accessible data” at paragraph 24. It is not clear how this will be interpreted and it is to be hoped that common sense will prevail and that there will not be a rash of satellite litigation on the subject. However, if a party requests specific disclosure of ED under Rule 31.12 and the ED are not reasonably accessible, that party must demonstrate that the relevance and materiality of the documents requested justify the cost and burden of retrieving and producing them.
The PD warns against the injudicious use of keyword searches and encourages the parties to consider supplementing keyword searches and other automated searches with additional techniques such as email thread technology and other techniques (such as Equivio Relevance, for example).
There are provisions relating to the disclosure of metadata and the parties are warned to be alert to the possibility that metadata or other useful information relating to documents may not be stored with the documents.
Provision is made for changes to the format of the List of Documents. There are 7 factors to bear in mind when disclosing by list (see para 30) and, in our view, no party should contemplate typing up a list of documents from now on as the draft list can be prepared from processed documents at the click of a button.
The parties are to cooperate with one another at an early stage about the format in which ED are to be provided on inspection. The court will decide if there is any disagreement. Electronic copies of disclosed documents are to be provided in Native Format and in a manner which preserves the metadata relating to the creation of each document. There is guidance about providing searchable OCR versions of ED with the original (see para 34).
If ED are best accessed using technology not readily available to the receiving party, and that party reasonably requires additional inspection facilities, the party making disclosure shall cooperate in making such inspection facilities available.
At the end of the EDQ there are 6 guidance notes which should be read before attempting to complete the EDQ.
There are 3 consequential amendments to CPR 31.22 and PD 31 and an additional question to the Allocation Questionnaire which requires the parties to specify what agreement has been reached about the scope and extent of disclosure of ED.
The above comments are not exhaustive and are intended merely to provide a flavour of what is contained in the PD. As always, anyone using the PD should look at and understand its terms before dealing with the disclosure of electronic documents. If in doubt, consult Millnet!