UK: Electronic Disclosure – Data, Data, Everywhere

Long gone are the days when a party could comply with its disclosure obligations by merely undertaking a search for and disclosing hard-copy documents for inspection. The e-revolution has meant that electronically generated ’documents’ (such as e-mails, spreadsheets, presentations and word processing documents), and associated electronic data, are quickly becoming the primary focus of disclosure in litigation. This is perhaps not surprising when you consider that 97.3% of all documents created in 2000 were electronic, that in the same year there were an estimated 263 million e-mail boxes¹ and that the total number of e-mail messages sent worldwide daily during 2002 was 31 billion, with this estimated to exceed 60 billion by 2006².

With electronic communication in the workplace now taken for granted, it is estimated that about 35% of business documents never exist in physical form and that percentage is likely to increase year on year³. Ironically, although electronic documents are often much easier to create and store, they are also often much more difficult to destroy – documents deleted from a computer’s "Recycle Bin" actually remain on the computer’s hard drive until overwritten, which may be never with the memory size of today’s machines. It is, therefore, possible for electronically generated (and potentially disclosable) documents to be retrieved long after they have been "deleted". However, this can be a very expensive process, as can searching for and reviewing the vast quantities of electronic ‘documents’ in order to discover the relevant ones.

It is also not just the electronic ‘documents’ and data referred to above which are potentially disclosable. Mobile telephones and personal digital assistants (particularly if used to send and receive e-mails and text messages as well as to store and edit documents and notes – think of Andrew Gilligan and the recent Hutton inquiry), as well as fax machines, all create and store electronic data which may become disclosable in litigation. Many businesses use networks and e-mail systems with central document and e-mail servers which create and store their own data.

With so much potentially disclosable, retrievable electronic information in existence, from so many sources, what are a party’s disclosure obligations in litigation? How far does a party have to go to retrieve, review and disclose this information? The normal disclosure order under the Civil Procedure Rules requires a party to give "standard disclosure" of documents which are or have been in its control and on which it relies, documents which adversely affect its own case and documents which adversely affect or support another party’s case. CPR 31.4 defines a "document" as "anything in which information of any description is recorded". In Derby –v- Weldon (No. 9) (1991), the Court concluded that the database of a computer, in so far as it contained information capable of being retrieved and converted into readable form, was a "document" and that the Court had power to order disclosure of what was in the database.

The application of this definition to electronic data raises a number of difficult issues. Electronic data can be broken down into four categories. These are known as "active data" (for example, the in-box and sent items in an e-mail system), "replicant data" (for example, a temporary copy of a file made when opening an e-mail attachment), "back-up data" (data generated and stored in case of a system failure) and "residual data" (essentially, data which is often mistakenly thought of as deleted). In addition, computers automatically create and store valuable data about a document, known as "metadata". This includes potentially interesting information tracking the origin and history of an electronic ‘document’, and those who have had access to or have changed it, which may be invisible on inspection of a paper print-out – for example, the "cc" and "bcc" on e-mails.

In appropriate cases, all of the above forms of data may yield relevant, disclosable ‘documents’. It is not clear from either the Civil Procedure Rules or case law precisely what lengths a party must go to in order to search for such documents and what constitutes a "reasonable" search. For example, is it sufficient for a party to limit its search to active data, which will usually be the most accessible and cost effective data to review and disclose? The reasonableness of any search will turn on the particular facts of each case, which must be considered in conjunction with the tests of proportionality which are set-out in CPR 31.7. This rule sets out the factors relevant in deciding the reasonableness of that search, including (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any document; and (d) the significance of any document which is likely to be located during the search. This fits in with the overriding objective of the Civil Procedure Rules.

It is suggested that in practice, in relatively straightforward, routine cases, it may well be reasonable and proportionate to limit any search and disclosure to active data, although careful thought will still have to be given to where this data may reside – for example on the work or home PC’s or laptops of those involved in the matter giving rise to the claim, as well as information on any mobile telephones or PDAs. In more complex cases, especially involving suspected fraud or issues about the state or timing of knowledge of the individuals involved or the provenance of documents, it is easy to see that a wider search and disclosure may be required. In Zubulake -v- UBS Warburg LLC, a recent case in the US, the court provided guidelines for determining whether data should be treated as accessible or inaccessible and setout an analysis to help decide which information should be treated as inaccessible and which party should pay the cost of producing data deemed "inaccessible" according to principles of proportionality. One of the central issues in that case was how important the sought after evidence was in comparison to the cost of retrieval and production. We have yet to see whether the approach taken in this US case, where the court considered that the request for electronic disclosure may be unreasonable, but nevertheless ordered a search and disclosure whilst reserving the right to make that an expense of the requesting party, will be adopted in the UK. Such an approach would nevertheless appear to sit well with the principles enshrined by the overriding objective under the Civil Procedure Rules.

A further issue is what physically has to be produced for inspection. There is little authority on this issue. However, whilst the common practice of simply producing print-outs of disclosable e-mails may be a reasonable and proportionate method of providing inspection in a particular case, in more complex matters, including those involving fraud, this is likely to prove insufficient. It is arguable that the actual physical thing on which the information is recorded should be disclosed – for example, the hard disk, the laptop computer or the zip drive.

A working party has been set up by the Commercial Court to consider how electronic documents fit into the disclosure process. Some draft practice directions by interested groups have also begun to emerge. It is to be hoped that, as a result, further light will soon be shed on the matters discussed above.

Meanwhile, the issues surrounding the creation and disclosure of electronic data highlight the need for any individual, firm or organisation which may become involved in litigation to review their document retention policies and, if necessary, develop protocols dealing with the creation, storage and destruction of electronic data. This should help to ensure that they are prepared to deal early on with their obligations with regard to electronic disclosure in the event that a claim arises or is in contemplation. As with hard copy documents, this will include the obligation to locate and preserve potentially disclosable electronic data.

Once a claim is made (or is in contemplation), there are a number of steps which a party or those acting for them can take to deal appropriately with electronic disclosure, both in terms of getting their own disclosure in order and, if appropriate, being in a position to challenge the other side’s disclosure of electronic data. The following is a suggested checklist:

• Discuss issues concerning electronic data with the other side at an early stage in the proceedings and attempt to agree at the outset on appropriate parameters for disclosure;

• Raise the issue of preservation of data with the other side as early as possible in the proceedings;

• Identify the sources of electronic data held which are potentially discloseable and the identity of the individuals involved in creation of that data. Such sources should include data which may be held outside of the office, on, for example, a home computer, laptop, PDA or mobile telephone;

• Consider what is a "reasonable" search, with reference to the amount and sources of data involved, the potential importance of that data and the ease with which the data can be retrieved;

• In complex matters, consider whether it is necessary to involve internal or external technical assistance to help with the process of locating, retrieving and reviewing (using key word searches etc.) potentially discloseable material. This could ultimately lead to a saving of both time and money;

• Consider whether the documents disclosed by the other side tell the whole story and identify any gaps. For example, have emails of key personnel been omitted, have they adopted a selective approach in terms of dates of e-mails disclosed or attachments disclosed?;

• Remember that sufficient information must be given in a disclosure statement about the search for documents (and any limits applied to it); and

• Consider whether it is necessary to seek from the other side the production and inspection of the hard drive or other device on which their disclosed electronic data is stored. Is this a case where it is important to seek metadata? It may, for example, be crucial to know whether an e-mail was blind copied to a particular person.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.