Over the past decade businesses have increasingly used technology to conduct transactions. Email in particular has become an everyday part of corporate life. A recent amendment to Part 31 of the Civil Procedure Rules attempts to address the way in which parties to court proceedings disclose electronic documents with the intent of minimising the time and costs involved in the process. A new Practice Direction has been introduced together with an Electronic Documents Questionnaire.
Electronic Disclosure in Court Proceedings
In court proceedings where standard disclosure is ordered parties are required to disclose documents on which they rely, which adversely affect their own or another party’s case or which support another party’s case. Electronic documents may play an important role in this process but this does not just include emails – it may include for example text messages and voicemails, documents stored on memory sticks and mobile phones and documents stored on servers and back-up systems. This may result in a company storing thousands of documents in various formats and on various systems, only a handful of which may be relevant to the dispute in question. The task of locating these documents and storing them therefore needs to be conducted in a time and cost efficient manner.
Electronic Documents Questionnaire
Parties to litigation are now required to discuss with each other at an early stage in the proceedings how electronic documents are going to be disclosed. In larger cases this may involve the completion of an Electronic Documents Questionnaire (“EDQ”) which provides details of what electronic documents may have been created by reference to amongst other things the date range, types of communication, types of electronic document and storage location. The allocation questionnaire has also been updated requiring parties to confirm the extent to which they have used the EDQ to agree the extent of disclosure required. The court is likely to play a much more pro-active role in the scope of the disclosure exercise as part of its case management role.
Parties need to be aware of the need to preserve disclosable documents as soon as litigation is contemplated. This includes those documents that might otherwise be deleted in the ordinary course of business. Parties also have to confirm as part of the EDQ whether they have in place a document retention policy. Those responsible for the management of litigation (particularly in high value and complex cases) therefore need to understand their company’s IT systems and working practices to be able to provide information to their solicitors about the existence of electronic documents. Alternatively consideration needs to be given to who might be the relevant person in an organisation’s IT department to provide this level of information.
Failure to address the issue of electronic disclosure adequately can result in the court making adverse orders such as:-
- adverse costs orders;
- orders for specific disclosure;
- striking out a document or attaching what weight seems appropriate;
- debarring a party from trial where allegations that relevant electronic information has been destroyed are proven and justice cannot be done with the remaining evidence;
- striking out a claim or defence.
With sanctions such as these available to the court it is now more important than ever for parties to address the issue of electronic disclosure at an early stage and to be prepared.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.