The duty to disclose and provide electronic documents to opponents in English litigation: the Goodman Derrick approach
JULY 2010
The obligation to disclose, give inspection and provide copies of documents
Parties to most types of litigation in the courts of England and Wales have a duty to disclose to their opponents the existence of documents relating to the dispute that are, or have been, in their control. The opponents then have the right to inspect those documents and to request and receive copies of them: the only usual exception is documents that are “privileged” from inspection because they relate to legal advice or to preparation for legal proceedings.
Parties who are not used to English litigation are often surprised to find that they have a duty to disclose and copy to their opponents documents which most people would regard as confidential. However, unless a confidential document can be categorised as “privileged”, it has to be disclosed and produced: failure to do so will be a breach of Court rules and may amount to contempt of Court.
“Standard disclosure” (the usual obligation) requires a party to disclose to the opponent and - unless the document is “privileged” – to allow inspection of and/or provide copies of:
- the documents on which that party relies; and
- the documents which:
- adversely affect that party’s own case;
- adversely affect another party’s case; or
- support another party’s case.
The obligation is not absolute: a party complies by carrying out a reasonable search for the classes of documents described above that is proportionate to the case. Compliance is demonstrated by the completion of a standard form disclosure statement by the party concerned (or in the case of a corporate party, by someone suitable within the organisation), a copy of which is contained in the Annex to this article.
Disclosure is given by means of a standard form list of documents, in which each document has a sequential number and is described by its nature and date, for example:
1. Email from the Defendant to the Claimant - 1 July 2010
2. Letter from the Claimant to the Defendant - 2 July 2010
3. Contract between the parties - 5 July 2010
4. Minutes of internal meeting of the Claimant - 12 July 2010
5. Spreadsheet showing the services carried out by the Claimant at the Defendant’s request - 14 July 2010
6. Invoice from the Claimant to the Defendant - 15 July 2010
Etc.
If a party considers that the opponent has not disclosed certain documents that should be disclosed, a request for “specific disclosure” can be made. If necessary, an application may be made to the Court for an order that the specified documents or classes of documents be disclosed.
Electronic documents
‘Document’ means anything in which information of any description is recorded and therefore includes all kinds of electronic documents kept on any kind of storage or retrieval system or hardware.The Courts’ relevant Practice Direction states that the definition of a document is broad and:
“extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata”.
Electronic documents (“e-documents”) have existed and been subject to the obligations of disclosure, inspection and provision of copies to opponents for many years, but both courts and lawyers have in practice tended to be slow and slack about observing the obligations. That is changing. In a case reported in 2009, where the obligations had not been complied with, the Judge warned that whilst it might be contended that the obligation as regards e-documents was little known or practised outside the specialist Commercial Court, “such myth needs to be swiftly dispelled when over 90% of business documentation is electronic in form”. The Judge went on to warn that “those practising in civil courts are expected to know the rules and practise them; it is gross incompetence not to”.
The effect of that warning on clients is likely to be that their lawyers will no longer hope that they and the clients can get away with only disclosing e-documents to the extent that the client has printed off and kept hard copies of a few emails and other e-documents.
The process and practicalities of disclosing, giving inspection and providing copies of e-documents
Given that even a relatively modest business transaction can involve a large volume of emails, Word documents, spreadsheets, texts and the like, passing between a number of participants and stored on servers, PCs, laptop hard drives, mobile phones and Blackberries or similar devices, the task of sifting through them all to identify those e-documents that are relevant and then listing them and making them available for inspection and/or copying, might fill the uninitiated with horror. Fortunately, the obligation (as noted above) is to conduct a reasonable and proportionate search and there is a variety of specialist proprietary software to assist in the task.
Typical features of such software are:
- large volumes of e-documents can be gathered and loaded into it;
- once loaded, the e-documentation can be sorted and sifted using a variety of tools and criteria, including key word searches;
- some software can provide analytical diagrams, for example showing the passage of email traffic between different people;
- documents that are considered relevant can be “tagged” as such and listed as a standard form disclosure list, using date and other fields garnered from the e-documents;
- images of the documents in such list are linked to the list;
- hard copy documents can be added as scanned images and/or in OCR (optical character readable) form, with sufficient identification data typed in manually, thus enabling such documents to be included in the disclosure list;
- inspection and copies of documents can be provided to opponents on request, as required by Court rules, either by printing off hard copies or by providing copies of e-documents in “native” form, e.g. a Word document in the form of a Word file;
- when the opponent’s disclosure list and copies of the disclosed documents are received, they can be added as scanned hard copies or preferably in electronic form if supplied as such by the opponent;
- the documentation held within the software can be analysed and viewed for the purpose of producing witness statements and experts reports;
- if the case proceeds to a trial, the documents that are to be placed before the Court can be selected, organised into indexed and paginated files (known as “bundles”) and prepared for printing, all within the software. Most trials still require documentation to be in hard copy, but the software enables tens or even hundreds of files to be assembled electronically, before they are “exported” for printing (either to a printer within the office or perhaps to an outsourcing agency by means of a disc or external hard drive).
The Courts’ Practice Direction directs each party to discuss issues of disclosure, inspection and provision of copies of e-documents with the opponent prior to the Case Management Conference, which is the first meeting between the parties and the Court, when the Court gives directions for the management of the case. The Practice Direction states that:
“It may be reasonable to search some or all of the parties' electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances”.
Co-operation is the watchword and whilst it may prove challenging for parties which are fighting each other in litigation to truly co-operate, the Courts are liable to sanction lack of co-operation by a costs order against the non co-operating party.
The Goodman Derrick approach to disclosure, inspection and provision of copies of e-documents
We advise clients at an early stage as to their obligations with regard to disclosure, inspection and provision of copies of documents and e-documents to opponents. In some cases, it may be proportionate and possible to meet a client’s obligations without use of the software described above. This may be so where the issues are limited or where the volume of potentially relevant documentation is small. The parties might also agree that the scope of disclosure should be limited.
Where use of the software is needed, rather than purchasing it for use in-house, which would create a significant overhead and re-charge to the client, as well as limiting the choice of software to that purchased, we have chosen to work with a leading provider of electronic document management services called Millnet. That is not an exclusive arrangement, as some clients may have their own preferred choice of service provider or a conflict could arise if Millnet were already working for an opponent. Rather, we have established a co-operative working relationship with Millnet, under which we each understand how the other works so as to harness our respective resources for the client’s benefit. Typically, the process might work as follows, though every case will be assessed on its own merits and a process adopted that is tailored to that case:
- At an early stage, and prior to the Case Management Conference, we alert the client to the need to disclose and give inspection of and/or provide copies of relevant documents to the opponent, including e-documents;
- If it is decided that appropriate software is needed for this task, we arrange a meeting, or conference call, between the client, Millnet and us. This enables us to explain, or further explain, to the client the obligations under Court rules and Millnet to explain the software and services that they can provide. It provides an opportunity for Millnet to enquire as to what e-documentation the client has and where it is stored or hosted;
- That meeting may result in an initial assessment being made of what extent and manner of e-disclosure is reasonable and proportionate. An element necessary to complete that assessment is the cost of Millnet’s software and services in that particular case. At the meeting, Millnet will explain the basis of their charges and following the meeting will provide a costs estimate based on the information so far provided. Assuming that the client wishes to proceed, Millnet will provide the client with its contract documentation and the client will be invited to enter into a contract with Millnet;
- We then seek to discuss matters with the opponent’s solicitors, with a view to co-operating as required by the Practice Direction and establishing, so far as possible, a plan for providing mutual disclosure, inspection and copies of documents, including e-documents;
- The matter will be aired before the Court at the Case Management Conference and directions given;
- Either before or after that point, Millnet, the client and we will arrange for the client’s e-documentation to be gathered and provided to Millnet for loading into appropriate software. The choice of software may vary from case to case;
- Millnet will “host” the software and e-documentation, which will be accessible on-line to the client and us. Millnet provides web access, on a password protected basis. Training is provided in the use of the software;
- The client’s disclosure list will be produced as a result of work done by us and Millnet’s team, in co-operation with the client. Inspection and copies of disclosed documents will be given to the opponent in the form agreed with the opponent, typically in the form of a disc or other data transfer device prepared by Millnet;
- When the opponent’s documentation is disclosed and provided, it will be inputted into the Millnet software and analysed by us and the client, with assistance from Millnet on technical issues;
- The combined documentation disclosed by the parties will be held within the Millnet software and will continue to be available to us and the client on-line for the purpose of preparing witness statements, experts reports and files (“bundles”) if the case goes as far as a trial;
- Millnet will assist with case specific tasks, for example recovery of data from the hard drive of a laptop left in a damaged condition by a departing employee.
We believe that our approach of working closely with Millnet (or another provider of such services if the need should arise) provides our clients with an efficient and cost effective service in this important part of the litigation process. In particular, it enables us to provide clients with access to software, technical skills and a level of service that might in the past have been available only from much larger and more expensive law firms than us.
Annex
A disclosure statement is a statement made by the party disclosing the documents–
(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;
(b) certifying that he understands the duty to disclose documents; and
(c) certifying that to the best of his knowledge he has carried out that duty.
Disclosure statement
I, the above named claimant [or defendant] [if party making disclosure is a company, firm or other organisation identify here who the person making the disclosure statement is and why he is the appropriate person to make it] state that I have carried out a reasonable and proportionate search to locate all the documents which I am required to disclose under the order made by the court on day of. I did not search:
(1) for documents predating ..........,
(2) for documents located elsewhere than ..........,
(3) for documents in categories other than ...........
(4) for electronic documents
I carried out a search for electronic documents contained on or created by the following:
[list what was searched and extent of search]
I did not search for the following:
(1) documents created before..........,
(2) documents contained on or created by the Claimant's/Defendant's PCs/portable data storage media/databases/servers/back-up tapes/off-site storage/mobile phones/laptops/notebooks/handheld devices/PDA devices (delete as appropriate),
(3) documents contained on or created by the Claimant's/Defendant's mail files/document files/calendar files/spreadsheet files/graphic and presentation files/web-based applications (delete as appropriate),
(4) documents other than by reference to the following keyword(s)/concepts.......... (delete if your search was not confined to specific keywords or concepts).
I certify that I understand the duty of disclosure and to the best of my knowledge I have carried out that duty. I certify that the list above is a complete list of all documents which are or have been in my control and which I am obliged under the said order to disclose.
If you would like to discuss this article or to receive any further information about the topic, please contact Jonathan Haydn-Williams (+44 (0)20 7421 7936 or jhw@gdlaw.co.uk) or any other member of Goodman Derrick LLP’s Litigation Department
This article is for general information and interest only and should be relied upon as providing specific legal advice. |
