I recently attended a seminar, co-hosted by Kroll Ontrack, Dorsey & Whitney and Pinsent Masons on the use of an electronic disclosure questionnaire in court proceedings. The questionnaire’s proposed introduction illustrates some significant changes in case management that I think will have a real impact on how we litigate.
What is the ESI questionnaire?
The questionnaire is often referred to as the ESI questionnaire (where ESI stands for electronically stored information). Part 1 of the questionnaire gathers together details of:
- The type, location and custodians of electronic information that a party has control of.
- What searches (such as date ranges, keywords and other search tools) a party intends to deploy to discharge its disclosure obligations under Part 31 of the CPR.
Part 2 allows a party to give an indication as to the scope of searches that it expects from the other party in the litigation.
The questionnaire’s purpose is to assist the case management of disputes where the vast majority of a party’s documents (that it is required to disclose) are in electronic form. Given the overwhelming volume of documents now created, stored and duplicated electronically, this is a problem area for the case management of disputes. It is also a frequent source of additional cost and interim applications over a party’s compliance with its disclosure obligations.
The Civil Procedure Rule Committee is currently considering introducing the questionnaire. It was recommended by Senior Master Whitaker in Gavin Goodale and others v Ministry of Justice, where he commented on the increasing challenges to case management presented by the volume of electronic information now in the hands of parties to litigation. The questionnaire is appended to Senior Master Whitaker’s judgment and is recommended reading for any party about to embark on litigation involving electronic disclosure.
What is the practical impact?
From a practical perspective, whether or not the court requires the parties to complete the questionnaire, it provides an extremely useful starting point for clients and their lawyers to help manage electronic disclosure and its associated costs. I would strongly recommend that clients, their legal and IT teams all consider the questionnaire at a very early stage, either when proceedings are still being contemplated or shortly after they have been commenced.
The structure of the questionnaire helps the team to identify the information that it has to hand and to start the process of recovering that information and deploying searches against it. Not only does this assist in earlier compliance with a party’s disclosure obligations, it also helps the team identify, at a much earlier stage, those documents on which some of the key issues in the case might turn.
Just as importantly, it helps resolve the current uncertainty over electronic disclosure. The reality is that despite all the best efforts by various bodies, there remains a lot of uncertainty amongst practitioners as to how and when electronic disclosure should be managed in proceedings. This can often result in disputes over whether a reasonable and proportionate search has been undertaken.
What is certain is that, given the volume of documents that are now held electronically, consideration of how to manage electronic disclosure is no longer an option. It is something that parties must consider from the outset.
From my recent experience of resisting objections and challenges to an e-disclosure exercise, the earlier that the parties can complete the questionnaire, the less likely it is that you will be faced with requests for specific disclosure. I would recommend that parties discuss the questionnaires with each other, ideally before the first case management conference. This allows the parties to get on top of their documents before costs escalate too far.
Are there disadvantages?
As usual, it is not all perfect. Before committing to the questionnaire at an early stage, your client needs to realise that it could commit them to search terms and sources of electronic documents resulting in a disproportionately large number of documents to review – at significant cost. We also all know that issues change during litigation and using the questionnaire early may mean efforts based on certain key issues are wasted if the issues change.
This is well recognised by the CPR Committee. They are looking not only at how to better target those documents that will assist the trial of the dispute, but also the idea of staged disclosure. In the meantime, e-disclosure providers are marketing sample searches and sophisticated software packages that allow preliminary searches to map out key date ranges or document types, and exchanges that are relevant to the dispute.
These are early days, but the questionnaire is a good indication of what litigation will look like in a few years. However, parties should not wait until the questionnaire’s use is compulsory. A concerted use now should be welcomed. It is a practical step in addressing the challenges of disclosure in an age of mass electronic data retention, which otherwise ends up being the source of delays and increased costs.