Background to the ESI Disclosure Questionnaire

Tracey Stretton, Kroll Ontrack

In the recent case of Gavin Goodale & Ors and The Ministry of Justice & Ors, Senior Master Whitaker published an ESI Disclosure Questionnaire which is likely to be introduced into practice in October this year.  It requires parties to provide information about the documents they hold in electronic form and which are to be disclosed, along with details of their electronic storage systems.

In the UK, the Judiciary is taking a tougher stance against parties who do not comply with the rules of court when it comes to the disclosure of Electronically Stored Information and the risk of sanctions is increasingly a real one.  Recent case law indicates a growing expectation that parties need to anticipate the need to disclose ESI, need to collaborate about the scope of the electronic disclosure exercise and rely on technology and technical experts to help them design practical solutions that reduce the burden and cost. For example in the case of Earles v Barclays Bank  heard last October, the Judge noted that over 90% of business documentation is electronic in form and said the following:

“The abundance of this ESI in cyberspace means that potential litigants, in particular organisations such as Banks at the current time, need to anticipate having to give disclosure of specifically relevant electronic documentation and the means of doing so efficiently and effectively.”

And in the earlier case of Digicel v Cable & Wireless , the parties embarked upon their disclosure efforts, without discussing what might be involved or the approaches that they would take. The defendant had already searched through 85 email accounts, returning over one million documents, which were reduced to 5,200 documents, a process which took 6.700 man hours and cost of £2 million in legal fees.  Despite those efforts the Court ordered defendant to restore backup tapes of relevant employees’ email and employ additional search terms. The Court ordered the parties to meet and noted the following:

“This meeting can be attended by [the Defendants’ ED provider] and any expert available to the Claimants. The discussions at that meeting should be minuted. Following such a meeting, the Defendants should embark so far as reasonably practicable upon restoration of the back-up tapes for the purpose of identifying and enabling a search of relevant e-mail accounts.”

And in the Goodale case, the following was noted about the availability of technology solutions:

“I suspect that in the long run this crude search will not throw up more than a few hundred thousand documents.  If that is the case, then this is a prime candidate for the application of software that providers now have, which can de-duplicate that material and render it down to a more sensible size and search it by computer to produce a manageable corpus for human review – which is of course the most expensive part of the exercise.  Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.”

Against this backdrop of cases which indicates what can go wrong when edisclosure is not approached properly, the ESI Disclosure Questionnaire has been prepared to guide parties in their approach to disclosure.

Benefits of using the ESI Disclosure Questionnaire

• ESI is not ignored by parties in civil litigation.
• The questionnaire is a useful checklist for parties approaching an edisclosure exercise.
• It provides an agenda for discussions between the parties and the basis for collaboration on disclosure.  
• Planning for disclosure takes account of the expectations of other parties and avoids unilateral action which can result in exercises having to be repeated.
• It assists with the scoping of disclosure exercises and lays the platform for proportionality by allowing parties to make sensible selections of data sources. 
• It encourages early agreement on issues or early court resolution.
• It encourages parties to make use of new technology solutions to reduce the burden of reviewing large volumes of documents.

What does the ESI Disclosure Questionnaire deal with?

Questions 1 to 5 – The extent of a reasonable search
Questions 6 to 9 – Methods of search
Question 10 to 12 – Potential problems with the extent of the reasonable search and accessibility issues
Questions 13 and 14 – Preservation of ESI
Questions 15 to 17 – Inspection
Questions 18 to 23 – The disclosure of other parties

Key issues – the reasonable search and accessibility assessments

Civil Procedure Rule 31.7 requires parties engaged in civil disputes to conduct reasonable searches for documents subject to CPR 31.6 “standard disclosure”.  The Practice Direction at 2A4 sets our various factors to be taken into account when assessing “reasonableness”.   Lawyers and their clients need to work out how to locate relevant documents by considering who the key individuals are, establishing data ranges and thinking about key locations where important documents are most likely to be found.  In practice two key factors which determine whether or not a particular search is proportionate are the likelihood of locating relevant data and the cost of recovering any electronic documents.  There are of course many more locations to consider in the electronic landscape and the volume of potentially relevant material data that needs to be assessed makes it essential to carry out thorough data mapping and to rely on IT experts to assist with source selection and accessibility assessments. 

How can technology assist?

Firms that offer electronic disclosure services and technologies are able to provide practical support to legal teams approaching disclosure and help them build a defensible position that keeps costs in check.  Lawyers can draw on technical expertise to provide time and cost estimates as well as other technical evidence required to justify the approach taken to edisclosure.

Those firms with inhouse computer forensic experts, skilled at mapping complex IT infrastructures, can provide guidance on the selection of data sources likely to contain potentially relevant and disclosable documents.  They can provide expert assessments on the accessibility of data sources, the likelihood of finding relevant data can also help preserve and capture critical evidence onsite from an array of storage or media systems.

Technical experts can advise on searching methods, the construction of keyword searching lists, the use of concept searching and early case assessment tools to adopt a more scientific approach to searching.  Sophisticated data filtering technologies can help direct legal teams to the most important documents both proportionately and accurately, reducing the costs of the document review exercise

Future of the ESI Questionnaire

The ESI questionnaire and a new Practice Direction on disclosure are presently being considered by the Civil Procedure Rules Committee.  Public comments made by the judiciary indicate that it will introduce into practice in October this year.  In the meantime, it has been published for voluntary use.  It is not yet clear whether it will be compulsory or not.  Either way, the questionnaire acts as a useful checklist of the issues parties should consider when approaching edisclosure.  As a matter of best practice parties that consider the issues raised in it at an early stage are better placed to reduce the cost and risk associated with edisclosure.

Tracey Stretton is a Legal Consultant at Kroll Ontrack's office in London.

Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.