ELECTRONIC DISCLOSURE
Pre-Action E-Disclosure and Beyond - Focussing the Search for Documents.
Mark Chesher, Associate, Addleshaw Goddard
Hands v Morrison Construction Services Limited (Lawtel 16.06.06 – unreported elsewhere)
This recent decision, arising from an application for pre-action disclosure under CPR 31.16, is a reminder of the inherent differences between paper and electronic documents when selecting, retrieving and reviewing documents that may have to be disclosed in proceedings. It also highlights the need to consider, at an early stage, the extent of the searches for electronic documents that may need to be undertaken and how that task can be made more manageable.
The First Hurdles
When considering an application for pre-action disclosure, the first step, whether dealing with electronic or paper documents is to establish the key categories of documents needed to focus the issues or allow the applicant properly to assess a potential claim before proceedings are issued. When considering the application, the court must first check that the preliminary jurisdictional hurdles of CPR 31.16(3)(a) and (b) are satisfied – i.e. both the respondent and applicant are likely to be a party to any subsequent proceedings. Secondly, CPR 31.16(3)(c) requires that documents sought in the application must fall within the class of documents that would be covered by standard disclosure in the normal course of proceedings. Finally, the court must then consider whether pre-action disclosure is "desirable" in order to:
- dispose fairly of the anticipated proceedings;
- assist the dispute to be resolved without proceedings; or
- save costs.
Terabytes
The application made by Mr Hands was only partially successful. The court held that the jurisdictional requirements were satisfied, and agreed that pre-action disclosure was desirable because there was real prospect that it might enable the applicant to focus his case on two critical issues. However, when granting the order the court took the view that the extent of the disclosure sought by the applicant was so wide that it would lead to costs and delays greater than the costs potentially saved by the proceedings being narrowed by such disclosure. Accordingly, the court exercised its discretion and ordered pre-action disclosure of only those paper documents in the respondent's solicitor's possession (approximately 175 files) as this would offer a real prospect of achieving the objective of more focussed proceedings.
This case demonstrates that it is crucial to consider how it may be possible to narrow the scope of a request for electronic documents in order to convince the court that the desirability of pre-action disclosure of electronic documents is not outweighed by the perceived difficulties in dealing with potentially vast quantities of data.
Morrison's solicitor estimated that the disclosure sought by the applicant would have involved a search across 10 potentially relevant servers containing approximately 1.855 terabytes of data. The judge commented that "terabyte" might be thought to be an appropriate word (perhaps used deliberately for its intimidating effect), but also accepted that, with co-operation between the parties, the scope of the search required to be carried out on the servers had potential to be narrowed. However, perhaps crucially, this had not been explored prior to the hearing.
Filtering
The court heard evidence that 1.855 terabytes (1,855 gigabytes) was approximately equivalent to 850,000 lever arch files. However, in almost all cases, provided you utilise the technology available, this volume of electronic data should be far less intimidating than its paper equivalent. With careful thought, consultation with key individuals and the application of appropriate filtering methods and legal technologies, the quantity of documents that have to go through an expensive legal review process can be reduced from terabytes to something much less intimidating. The precise details of the filtering process have to be tailored to each individual case but the principal filtering methods available include:
- Custodian - Can the search be restricted by reference to particular individuals, teams or projects?
- Location - Where is the relevant data stored? One office, several offices?
- Source/Media - Is the relevant data likely to be confined to specific servers, PCs, back-up tapes or other media?
- Document type - Are relevant documents likely to be a particular type? For example emails, Microsoft Word or Excel documents.
- Date - Is it possible to limit the search to a key period or have a cut off date before or after which no electronic documents are likely be relevant?
- Keywords/Topics - Once you have narrowed down the sources of potentially relevant documents is it possible to limit the search by reference to keywords or phrases?
Keyword filtering is specifically referred to in 2A.5 of the Practice Direction as a mechanism for producing a reasonable search of electronic documents. The direction also encourages that the keyword lists should be “agreed as far as possible between the parties”.
De-duplication In many cases it will be possible to further reduce the volume of data after the other filters have been applied by using appropriate software to remove any duplicate documents before legal review. This typically reduces the volume of documents by around 35%.
If the particular facts of the case allow sufficient use to be made of these filtering methods, there is no reason why terabytes of potentially relevant data should automatically be a bar to an application for pre-action e-disclosure. By carefully focussing the search it should be possible for applicants to obtain pre-action disclosure of, for example, the electronic documents necessary to properly focus the issues between the parties, thus saving the delays and costs associated with amendments to statements of case following standard disclosure. On occasion, documents may be discovered which enable the dispute to be resolved before proceedings are issued.
Beyond Pre-Action
Unless the width of the request and the volume of documents expected to be encompassed within it can be kept small enough to ensure the benefits outweigh the scale (and costs) of the task of retrieving and reviewing such data, the court is unlikely to be persuaded that pre-action disclosure of electronic documents is "desirable". At that stage it may already be clear that standard disclosure could potentially involve large quantities of electronic documents and it is important that the parties address this early in proceedings. The Practice Direction to CPR 31 states that the parties should try to agree a plan for preserving and searching electronic documents before the first Case Management Conference so that any outstanding issues can be resolved at that point.
Consideration of the potential parties' sources of electronic documents at the pre-action stage serves two further purposes. Importantly, it enables the lawyer to advise a client properly on preserving and capturing potentially relevant documents to discharge their disclosure obligations but there may also be a tactical advantage to be gained. Preserving and capturing all potentially relevant electronic documentation at an early stage, and having a clear idea of the core documents before issuing proceedings or prior to drafting a defence ensures that the best possible case is put forward from the outset. Later decisions will then be made in the light of greater knowledge of the facts of the case.
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