Disclosure of electronically stored information “ESI” – A Practical View
This is the transcript of Jane Ryland’s speech on e-disclosure which she gave at a recent construction seminar hosted by Cripps Harries Hall.
For any of you who have been involved in litigation or arbitration you will know that one of the expensive and time consuming parts of the legal process is “disclosure” of information. In general terms this is where the parties compile lists of all relevant documents, whether they support your case or not. Traditionally lists are exchanged and copy documents supplied where requested.
In court proceedings disclosure is governed by the Civil Procedure Rules Part 31. The duty is to give disclosure of all “relevant” documents that are, or have been, in that party’s control subject to the caveat that the search for those documents need only be “reasonable and proportionate”.
The definition of ‘document’ is, however, very broad:
‘document’ means anything in which information of any description is recorded (r31.4)
As is the definition of ‘copy’:
‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly. (r31.4)
So it is clear that we need to think beyond the boxes of papers that have traditionally been the source for disclosure lists to electronic ‘documents’.
The Practice Direction
The Rules now give us some direct guidance on what else we need to think about, when considering disclosure in the 21st Century. Tucked away within the Practice Direction to Part 31 is clause 2A on electronic disclosure.
The case of Digicel & others –v- Cable & Wireless plc & others  EWHC 2522 (Ch) is extraordinary but illustrates the issues nicely. This was an international, commercial telecoms case where both parties were represented by top London firms of solicitors. Despite this, at the Case Management Conference neither side raised e-disclosure as an issue and a traditional order was made. The parties subsequently realised that they needed to disclose electronic information but they did not liaise to try to agree what was relevant or proportionate, what each party should search for and how they should go about it e.g using agreed keywords. This lead to applications for specific disclosure by the Claimants under CPR rule 31.12, at which point the judge realised that he needed to give guidance and that the parties may need to go through the whole disclosure process again, wasting the costs of the first attempt.
It is worth looking at the facts and figures of Digicel to illustrate the point in detail. This was a dispute between 8 Digicel mobile phone companies based in the Caribbean, and Cable & Wireless plc and 5 of its Caribbean subsidiaries. A traditional Order for standard disclosure had been made in February 2008 but despite this being a telecommunications dispute neither side dealt with e-disclosure as required by the Practice direction.
The dispute related to a period between 2001 and 2006. Cable & Wireless produced 1,140,000 e-documents to their solicitors on DVDs, CDs and hard-drives. Between the lawyers and a litigation support provider these documents were reviewed manually by sub-folder title for relevance and then submitted to an electronic de-duplication process, reducing the number to 625,000 documents. These were key word searched and finally 197,000 e-documents were manually reviewed producing 5,212 documents (83 lever arch files) for disclosure. This was at a cost of £2m and disbursements of £175,000. It is worth noting that Digicel had ended up with 860 lever arch files from their disclosure exercise compared to Cable & Wireless’ 83.
Digicel’s complaint was that the key word searching by Cable & Wireless was inadequate. Cable & Wireless had done key word searches using 10 key words for their Caribbean based searches and a further 4 (so 14) key words in London. Moreover Cable & Wireless had not searched back-up tapes for the e-mail accounts of 17 former employees. Digicel wanted Cable & Wireless to restore at least 800 back-up tapes and then re-search everything using the wider number of 34 key words. Apparently it was going to cost £225 for each tape selected for recovery.
The applications for specific disclosure were heard in September 2008 and the issue for the judge to consider was whether Cable & Wireless had done a reasonable search bearing in mind the overriding principle of proportionality.
The judge drew attention to the Practice Direction and pointed out that the Defendants had not discussed the issues regarding searches of e-documents with the other side and had used key words which they had not agreed in advance. This is contrary to the Practice Direction. The unilateral decision made by Cable & Wireless’ solicitors was now being challenged such that the court might require the exercise of searching to be done a second time with the overall cost of the 2 searches being significantly higher than the cost of a wider search had it been carried out on the first occasion.
After due consideration the judge ordered that the back-up tapes be restored in relation to 7 e-mail accounts but this was to be done after a meeting between the solicitors to discuss how the restoration process could best be done. The solicitors were then to cooperate further throughout and the Defendant’s solicitors were to report to the Claimant’s solicitors every 2 weeks on the rate of progress. This Order illustrates the way in which the court expects the parties to collaborate on e-disclosure issues.
The judge then looked at each of the proposed key words and came up with 8 further words to be included in a reasonable search of the e-mail accounts recovered through the back-up tapes.
Further, he ordered additional key word searching of the 16 e-mail accounts that had already been searched and disclosed.
Thus Digicel is a wake-up call to ensure that the parties cooperate from an early stage on e-disclosure issues. Ignore it at your peril!
Creation of ESI
In the future most litigation will only involve ESI as in the main parties will contract and correspond electronically rather than on paper. But the cost of e-disclosure can be phenomenal. So the first thing to think about is what ESI your business generates.
[Interactive session] e.g. computers, laptops, memory sticks, phones (text messages), cameras, BlackBerry, email, CAD drawings, servers and back-up systems etc.
Remember, if person A emails to B, C and D that’s at least 3 documents created and each of them replies (6 documents) and then there is the metadata for each item.
Definition of “metadata”: Data about data. Metadata describes how and when and by whom a particular set of data was collected, and how the data is formatted.
Metadata describes other data. It provides information about a certain item’s content. A text document’s metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document. Web pages often include metadata in the form of meta tags.
Storage and Retrieval
How long does your business keep ESI for? How easy/expensive would it be to retrieve?
Remember documents signed “under hand” have a 6 year limitation period whilst Deeds create a 12 year period in which claims can be made so we are looking at long periods of time. What e-systems and tools was your business using in say 2001? Who were the “custodians” of that information? What about the phones and laptops for staff who have left? Can you access those documents? Do you have the back-up tapes and how easily searchable are they? The duty covers information that has been in your control. It includes information that may have been deleted but is in fact retrievable. What are your policies for back-up, retention and destruction? Your lawyers will want to know.
The obligation is to carry out a reasonable search. Consider the number of documents involved, the nature and complexity of proceedings, the ease and expense of retrieval.
The exercise must be proportionate to the dispute. This cuts both ways. You can rely on proportionality to cut the cost but you have to run the risk of the process occasionally getting it wrong, i.e. missing the smoking gun. You cannot have justice to the nth degree.
The parties must cooperate at an early stage in the litigation. We have to have a more consultative, cooperative approach with the other party and the judge over the extent of the searches. We will be required to tell the other side our proposals and what we expect from them in terms of a reasonable search.
For ESI you will need to run a de-duplication exercise to remove unnecessary duplicated copies.
The majority of construction disputes will need consideration of the relevance of the digital data. Occasionally the state of the information will be critical. This means that at a very early stage the lawyers have to consider whether the date or time that a document was created is important. Is who created it important? Is a provenance test required? If any of these criteria apply then DO NOT forward key documents electronically to your lawyer. DO NOT even print them. Specialist companies are required to forensically manage and preserve this data.
Similarly we will see greater use going forward of specialist companies who will collate, search and preserve ESI for us, enabling the parties and the court to exchange ESI and use electronic bundles in court. No longer will we have huge lever arch files piled up in the TCC and being dragged back to chambers and solicitors’ offices at the end of each day.
The technology is continuously improving. Advanced review tools enable e-disclosure professionals to identify and analyse email threads, find relationships between email attachments and to compare similar documents. Searching is no longer restricted to key words but searches concepts or meanings based on a specimen set of documents. This shows how technology has moved on even since Digicel in 2008.
The Right Honourable Lord Justice Jackson in his preliminary report reviewing civil litigation costs has a chapter (Chapter 40) on e-disclosure. His report went out for consultation over the summer and his final report is due at the end of the year.
In addition there is to be a new practice direction and a specific questionnaire on e-disclosure, to aid the judge and the parties in their consideration of e-disclosure. Drafts are expected in December to coincide with the Jackson report. The revised Practice Direction and questionnaire are likely to be part of the Spring 2010 CPR update in April next year.
In arbitration, the Chartered Institute of Arbitrators has produced a protocol “Protocol for E-Disclosure in Arbitration” October 2008 which requires the parties to confer at the earliest opportunity regarding the preservation and disclosure of electronically stored documents. A party requesting disclosure of metadata shall be required to demonstrate that the relevance and materiality of the requested metadata outweigh the costs and burdens of producing the same. A producing party shall give advance notice to the requesting party of the electronic tools and processes that it intends to use in complying with any order for disclosure of electronic documents.
A reasonable search
What is “new” is the need to engage with ESI at an early stage in dispute resolution.
Reviewed in 2015