Disclosure, discovery, whichever term you choose, the process is synonymous with time and expense in litigation. In subject areas that are document-heavy, like construction and engineering disputes, or large commercial cases, the cost of going through the disclosure process is often a significant part of a party’s overall costs.
Back in the day…
The disclosure process used to be more straightforward than it is today. Some practitioners may be able to remember what it was like to go through the disclosure process when all you had were piles of papers, some in folders, others not, some neat and tidy, others dog-eared and thrown in a box. Faxes (and telexes – does anyone remember them?) on that shiny paper that faded with time, especially if left lying on a desk in the sun. Hopeless to photocopy, always the wrong size (foolscap not A4) and woe-betide anyone who had highlighted words on it – they were gone forever.
It was normal to ask around the client to see who was involved on the project, who may have kept a diary and the like. Visits to site offices, Portakabins and dusty warehouses were commonplace.
That was in the days before electronic devices. First it was just computers and the word-processing that they generated. No-one really thought much beyond back-up tapes and hard drives, and often not even those were looked at. Then people started to communicate via computer. Email was just the start, electronic calendars were not far behind. That was just the tip of the iceberg. Now we have various portable devices: phones that do much more than act as phones, memory sticks, lap-tops, electronic notebooks, the list goes on. It seems we are just waiting for Steve Jobs to come up with the next gizmo for us to use away from the office. From just paper, we have moved to a disclosure world full of bits and bytes.
How have the courts reacted to this?
Over the years the courts have had to grapple with issues of e-disclosure. The CPR first addressed it in 2005, when e-disclosure was added in as paragraph 2A to Practice Direction 31 (PD 31). The courts followed suit, with notable judgments including Gavin Goodale v The Ministry of Justice.
Things moved on. Jackson LJ reported that many parties were simply ignoring paragraph 2A. A working committee was set up, led by Senior Master Whitaker. Ultimately the CPR was amended and we now have PD 31B, which came into force today (1 October), and which is all about e-disclosure. Appended to the PD is an electronic documents questionnaire, which parties can voluntarily use to give information to each other and the court about their electronic documents.
What is an electronic document?
PD 31B defines electronic documents broadly as “any document held in electronic form“. But it isn’t limited to “documents” in the more traditional sense. Voicemail and text messages are included, as well as metadata and other embedded data that we don’t normally see. Even deleted data is caught.
It is said that 90% of information is created electronically. That’s a lot of electronic data. There’s probably another statistic somewhere confirming that there is more data in total now, than when parties only had paper. After all, how often is the “reply to all” button or the cc and bcc button used on email unnecessarily?
Master Whitaker’s view on PD 31B
Master Whitaker has expressed his views to PLC on the introduction of PD 31B. His three key messages are:
- Parties need to make reasonable searches for electronic documents that will satisfy their opponents and the court, and that are proportionate and cost-effective. They should use appropriate modern methods of search.
- It is essential that before searches are carried out, the parties have a structured exchange of information about the sources of documents for the search and the proposed methods of search.
- The parties have to concentrate on e-disclosure issues at an early stage.
You have been warned!