Byline: Julia Lowe
Disclosure of documents that are relevant to a claim has always been a key part of any litigation process. The courts place a very significant duty on the parties to a claim to disclose not only documents that they are relying on but also those documents that might actually help the other side in the dispute. A judge will come down very heavily on a party who fails to comply with its obligations on disclosure.
Increase in electronic data Not that long ago, disclosure typically involved lawyers sifting through files and filing cabinets at their client's offices looking for documents which might have to be disclosed. This could be a time-consuming process but was not generally a particular complicated one. However, the disclosure landscape has changed very significantly as businesses have used more and more technology in their day-to-day commercial activities. Information that would be discloseable within court proceedings is no longer contained just in hard copy files but is found on email accounts, desktop PCs, laptops, servers, back-up tapes (on-site and off-site), blackberries, iPads, mobile phones (in the form of texts and voicemails), memory sticks, CD-ROMS and DVDs. The list goes on and continues to grow as technology develops. Its not just the data contained in these documents that might be relevant. The metadata - or data about data - may also be relevant and have to be disclosed.
The court has in the past required a party to complete a short statement about searches that they have undertaken for electronic documents but it is fair to say that not enough emphasis has been placed on the search for electronic documents.
New rules This has now changed. From 1 October 2010, new rules came into force regarding the disclosure of electronic documents (or "e-disclosure" as it is called) and businesses that get involved in litigation must take note so that they can properly comply with their duties to the court. The rules now recognise that the majority of a party's documents will be stored on their electronic systems and storage devices and therefore place very stringent obligations on the parties to undertake searches of those systems for all types of electronic documents.
Vast amount of electronic documents Given the sheer volume of electronic data produced by businesses every day, the prospect of having to undertake searches like that can be daunting for litigants and their advisors alike. The court have recognised this and have produced a questionnaire (the Electronic Disclosure Questionnaire) for parties to complete which focuses their minds on the key issues such as (1) where electronic documents are likely to be, (2) who is likely to have them in their possession ("the custodians"), (3) the type of electronic documents that a business will typically create (emails, texts, voicemails etc) and, importantly, (4) the best way for the systems to be searched e. …