Electronic
Disclosure
or
When
is a Document not a Document?
Lawyers have
long been familiar with the concept that a document is not simply a piece of
paper. By CPR Part 31.4 a document is very broadly defined as anything in which
information of any description is recorded. It is not therefore surprising that
this includes information held on computer (see for example Alliance & Leicester Building Society v Ghahremani [1992] RVR 198 –
computer word processing file within the definition of ‘document’ for the
purposes of an order preserving documents in connection with proceedings).
The Courts have
been dealing for some years with applications for the inspection of computers
by experts and for disclosure of e-mails and other documents held on computers,
servers and back-up devices (see e.g. Marlton v Tektronik UK Holdings Ltd.,
Ch Div, 10/2/04 (unreported)).
Various
e-disclosure software packages already exist to make sophisticated searches of
electronic documents possible.
For all that
this is not a challenging or particularly novel concept, it was only on 1st October 2005 that a new paragraph 2A dealing exclusively with electronic
disclosure was inserted into the practice direction accompanying CPR Part 31.
For the
avoidance of any doubt paragraph 2A.1 explicitly provides that the broad
definition of a document in Part 31.4, ‘…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”.’
Some practical
matters are then addressed. Parties should discuss issues relating to
electronic disclosure before the first case management conference and this may
involve the provision of information, ‘about the categories of electronic
documents within their control, the computer systems, electronic devices and
media on which any relevant documents may be held, the storage systems
maintained by the parties and their document retention policies.’ The format in
which electronic copy documents are to be provided on inspection should be
agreed as far as possible. Paragraph 2A.5 recognises that keyword searches of
electronic storage systems may be reasonable and suggests that parties should
attempt to agree the keywords to be used.
So does this
simply reflect existing practice? In my view, by bringing the need for
electronic disclosure to the fore these amendments should, in time, actively
expand our horizons when we consider the evidence in any particular case.
The eagle-eyed
amongst you will already have noticed that practice form N265 – the list of
documents – has been amended to incorporate a lengthy statement as to the
extent of the search that has been carried out in relation to such electronic
documents. The default position is that no such search has been carried out,
but this is increasingly unlikely to be true. It is possible to imagine a time
when paper records are the exception rather than the rule and most disclosure
(particularly, in the context of personal injury litigation, by defendants)
will be electronic disclosure.
Simply printing
out copies of documents held on computer (e.g. an exchange of e-mails) actually
means that a search for electronic documents has taken place and the form then
requires further particulars. These include details of any keyword(s)/concepts
used to conduct the search; details of the file types/applications searched;
and details of the devices searched (which include such things as portable data
storage media, servers, off-site storage, mobile phones, handheld devices and
PDA devices).
My experience to
date is that these particulars are rarely completed. Whereas it may have been
considered something of a grey area in the past – or not really considered at
all – there is now no doubt that the disclosure obligation extends far beyond,
for example, a quick look at the present content of an individual’s mail boxes.
In two further respects
these requirements for electronic disclosure appear potentially more onerous
than may previously have been imagined.
Firstly, the
definition of a ‘document’ extends to documents that have been ‘deleted’. Most
of us are aware that selecting the ‘delete’ option for a file simply removes
the pointer that the operating system uses to enable you to find it on your
hard disk. It also permits the computer to overwrite that portion of the disk
with other data, gradually fragmenting and thereby destroying the file. To
permanently erase a file it also has to be ‘shredded’ – i.e. overwritten. A
computer forensic expert will be able to re-create files or portions of files
that have not yet been overwritten. It follows that relevant material of which
a party is aware, but has deleted, should still be disclosed, albeit that
inspection of that material may raise different issues. To what extent does a
party have to search speculatively for material which may have been
deleted?
Secondly, the
definition of electronic disclosure in paragraph 2A.1 concludes with the
intriguing sentence: ‘It also extends to additional information stored and
associated with electronic documents known as metadata.’
What is metadata?
Literally,
metadata is ‘data about data’. Every electronic document contains additional
information describing how, when and by whom it was created, when it was
modified and how it was transmitted.
An e-mail, for
example, will also contain information about the author, the creation date, any
attachments and the identity of all recipients (including those who only
received a cc or bcc). It will also tell you whether the e-mail was part of a
thread. A word-processed document or a spreadsheet will contain information
about the author, save date and location and, possibly, a record of previous
versions, editors and modifications made. This information can be captured in a
PDF or a load file mapped to an image file.
Although most
cases turn on what a document says rather than what its history reveals, in any
case in which it is relevant to see what a witness knew and when, the metadata
will be an essential tool for searching and analysing documents.
It can be seen
that this widens considerably the potential scope of every single disclosure
exercise, but there are controls. Paragraph 2A.4 recognises that: ‘The
existence of electronic documents impacts upon the extent of the reasonable
search required by Rule 31.7 for the purposes of standard disclosure. Four
(non-exhaustive) factors are identified as being relevant when deciding the
reasonableness of a search for electronic documents:
(a) The
number of documents involved.
(b) The
nature and complexity of the proceedings.
(c) The
ease and expense of retrieval of any particular document. This includes:
i) The accessibility of electronic documents or
data including e-mail communications on computer systems, servers, back-up
systems and other electronic devices or media that may contain such documents
taking in to account alterations or developments in hardware or software
systems used by the disclosing party and/or available to enable access to such
documents.
ii) The location of relevant electronic documents,
data, computer systems, servers, back-up systems and other electronic devices
or media that may contain such documents.
iii) The likelihood of locating relevant data.
iv) The cost of recovering any electronic documents.
v) The cost of disclosing and providing inspection
of any relevant electronic documents.
vi) The likelihood that any electronic documents
will be materially altered in the course of discovery, disclosure or
inspection.
(d) The
significance of any document which is likely to be located during the search.
Arguments about
proportionality and relevance will, as ever, rage backwards and forwards but in
my view electronic disclosure is likely to assume an importance that has
hitherto gone somewhat unrecognised. Far from being a post facto amendment,
scratch the surface and Part 31PD.2A begins to look like one of the more
forward-looking additions to the Civil Procedure Rules in recent years.
Ben Leech
12 King’s Bench Walk
June 2006
