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Electronic Disclosure of Documents in Contentious Proceedings

The Electronic creation and transmission of documents has revolutionised communication. Documents and correspondence are created, amended, replicated, circulated and stored more quickly and easily than ever before. However these advantages can become disadvantages, particularly when a party is faced with contentious proceedings.

In particular, electronic documentation is changing the face of disclosure of documents as we know it. The wellknown procedure of exchanging lists of documents and providing bundles of paper copies is being replaced by the simple exchange of a computer disk containing a fully searchable database of documents.

Procedurally, the existence of electronic documents has not changed the rules. For example, the English Civil Procedure Rules (CPR) make no distinction between the disclosure of paper or electronic documents and litigants are therefore obliged to disclose electronic documents in the same way as other documents – Rule 31.4 of the CPR provides that the parties must disclose “anything in which information of any description is recorded”. So this will cover not only correspondence but also databases, spreadsheets, diary information, contact lists, presentations and emails, wherever stored. In an arbitration, similarly wide terms are commonplace, thus, the parties must extend their search from paper copies to all forms of information storage. In adjudication, however, this is not so.

This raises many issues. Take the example of email. This form of communication is known to lend itself to unguarded comments on matters which later may become acutely sensitive. Moreover, since the email can be forwarded instantly to unknown recipients, this makes it very difficult to retrieve the item with certainty. When proceedings are commenced the position becomes even more complicated. First, every communication may potentially fall within the disclosing party’s duty of standard disclosure, which will hugely increase the logistical burden on the disclosing party. Second, the uncontrolled dissemination of a privileged document may lead to a loss of confidentiality and consequently a loss of privilege.

Consideration must also be given to document retention policies. These involve legal issues that arise not only if disclosure is ordered in contentious proceedings but also under operation of the applicable law on retention of documents. For example, a system that provides for the automatic deletion of documents from the computer system after a certain date must be checked for conformity with the legal requirements. It may mean that the retrieval of relevant documents for the purposes of disclosure in contentious proceedings may not be possible, and vital evidence may be lost.

It follows that specialist advice from IT support teams is increasingly necessary, whether one is disclosing or receiving documents. For example, electronic documents are not always “wiped” effectively from the hard disk and sophisticated retrieval methods are becoming commonplace.

Similarly, parties must think carefully about “metadata” contained in electronic documents which is invisible on the printed copy but can be seen when looking at the properties of the document on the computer screen, and may be of great value in proceedings. Metadata relating to a document (such as the identities of the author and of those who have subsequently edited it, the date of creation and any subsequent amendments) can be obtained, often without difficulty, if an electronic copy is in circulation.

Accordingly, modern day disclosure can be hugely time consuming and expensive as a result of the existence of electronic documents. This raises additional issues for those on both sides of the exercise to consider. CPR 31.7(3) requires the disclosing party to sign a declaration setting out the extent of its search, and similar requirements can be ordered of the parties in other types of proceedings. If the receiving party does not accept that the search has been conducted with sufficient rigour and no compromise can be reached between the parties, the extent of the disclosing party’s duty may need to be decided by the court or tribunal. In this case questions to ask might include:

• Are other documents capable of being recovered from the system (including from laptops and back-up tapes)?
• Have emails and other electronic information from key personnel been withheld? Have their secretaries and assistants’ documents been disclosed?
• Do the authors and dates of the disclosed emails indicate a selective approach to disclosure?
• Have all the attachments been disclosed? Can you tell which emails they relate to?
• What about multiple recipients?
• Have there been any amendments to the documents? Where are the drafts?
• Have all the responses to emails been disclosed?
• Should a request for disclosure of the metadata associated with any documents be made?

This assumes that electronic disclosure is given. The parties can agree to give “electronic disclosure”, meaning that they exchange discs containing databases of the disclosed documentation, rather then printed documents. In this event, it is normally advisable to involve IT support at an early stage and agree the fields being disclosed. Normally fields for these databases will include basic information such as “author”, “recipient”, “attachment”, “date”, “title” but other wider fields such as “create date”, “edit date”, “source” or “manuscript comments” may also be valuable on the facts of a particular case. It may also be advisable for the parties to agree to share the costs of a website, containing all the disclosed documents and which can be accessed by the tribunal, the experts and the witnesses. For a complex matter reaching across many time zones and involving many parties, this can provide significant savings on time and expense when compared to the costs of printing and couriering large bundles of documents to all the relevant parties.

The reasonableness of the search for documents, whether electronic or paper copy, remains unchanged and will turn on the particular facts of the case. The CPR lists (non-exhaustively) relevant considerations as: the number of documents involved; the nature and complexity of the proceedings; the ease and expense of retrieval of any particular document; and the significance of any document which is likely to be located during the search. Conversely these factors are equally important where a party is the recipient of a “document dump”, a tactic that is sometimes adopted in an effort to hide critical documents amongst a deluge of irrelevant documents. This should be resisted by the recipient.

The advent of electronic disclosure should not increase the risks of the parties seeking to delay matters by undertaking a fishing expedition through the other side’s documents. The issue of proportionality is of paramount importance in deciding the extent of the disclosure exercise: CPR 31.7(1) entitles the disclosing party to limit itself to ‘a reasonable search’ when making standard disclosure. In the case of an arbitration the parties will wish to think carefully about which disclosure standard will be suitable and whether to confine it to a “reasonable” standard along the English model. Although there is scope for debate as to where a ‘reasonable’ line should be drawn in practice, parties should remain robust in rejecting far-fetched lines of inquiry.