Litigation Support and Electronic Disclosure

The Sources of Disclosure Documents

The Scope of the Obligation to Disclose

Rule 31.4 of the CPR defines a "document" as "anything in which information of any description is recorded" and a copy as "anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly".

Other sections of Part 31 CPR define what documents are to be disclosed, the scope of the search and other provisions which apply to any form of Disclosure.

Part 31 is supplemented by a Practice Direction which gives some more specific requirements and includes a specific Section 2A on electronic Disclosure.

2A.1 provides:

"Rule 31.4 contains a broad definition of a document. This 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’. It also extends to additional information stored and associated with electronic documents known as metadata".

There is more, including provisions which balance the pure obligation to disclose against the number of documents, the expense of collecting them and their likely significance. I will not analyse them now (you can read the Practice Direction here) but do note the importance of getting to grips with your sources early on so that you can form a view before the first Case Management Conference as to whether you need any directions.

My concern here is with the definition of a "document" and the sources of them rather than with the exceptions which may apply in any particular case. Let's start with the obvious ones:

Paper
This is conventional stuff – in folders or ring binders. It must be scanned to get it into electronic form.

Electronic Files
Microsoft Word files, Excel spreadsheets and the like may exist on the computer system which created them, and as attachments to e-mails of both sender and recipients (they might also exist as paper, if a conventional filing systems was maintained).

E-Mail Files
Individual messages sit in mail systems of various kinds (and again may have been printed and filed as well).

Most Disclosure ends here. Other considerations arise with the definitions of "document" and "copy". I relegate them in this way because the tendency of experts to draw attention to the more esoteric and difficult aspects of their trades tends to obscure the fact that the majority of Disclosure comes from one or other of the three sources above.

I sometimes wonder if this emphasis on the fringes does not put people off the main attraction. If all the articles on electronic Disclosure go on about "documents" on your Blackberry, your USB pen and your multiple layers of back-up tapes, is it easier to close your mind to the whole thing and give Disclosure in the old way with a word processor and photocopier?

Perhaps. But that is to confuse the message with the medium. The message is that these things are all potentially disclosable subject to the provisos which balance cost and difficulty against value. But this is a balance, not an exemption. If your client's MD conducted all the critical contract negotiations by Blackberry and text message and carried the key documents around on a USB pen then the contents are disclosable, or must be considered for Disclosure, regardless of the difficulty of getting at them.

Furthermore, since a "document" is "anything in which information of any description is recorded" then whole PCs, servers, laptops and Blackberries are potentially disclosable. And that is the case regardless of your election to give your general Disclosure electronically. The obligation to disclose is independent of the manner of Disclosure and you do not increase that obligation by an election to give Disclosure electronically, nor brush it under the carpet by avoiding electronic Disclosure.

How wide is your Disclosure Search?

If I am right in thinking that many people close their minds to all but the conventional and accessible sources of documents then it is probable that they overlook to ask their clients about other sources. It may be that the model form of Disclosure Statement appended to the Practice Direction to Part 31 CPR is unwittingly a source of unnecessary comfort here.

It includes reference, inter alia, to…

"documents contained on or created by the Claimant's/Defendant's PCs/portable data storage media/databases/servers/back-up tapes/off-site storage/mobile phones/laptops/notebooks/handheld devices/PDA devices (delete as appropriate),

documents contained on or created by the Claimant's/Defendant's mail files/document files/calendar files/spreadsheet files/graphic and presentation files/web-based applications (delete as appropriate)"

…but these are preceded by the words "I did not search for the following:"

This might give the undiscerning reader the impression that such devices and documents are immune from the "reasonable and proportionate search" which the Disclosure Statement relates to. It does not. Indeed, the very recital (the detail of which may surprise some who think of Her Majesty's Judges as rather above "PDA devices" etc) is supposed to make the certifier (who is of course the client not the lawyer) think hard as to whether he or the company on whose behalf he is signing has any such devices.

My main point, however, remains true. Most Disclosure consists of paper, electronic files such as Word or Excel files, and mail messages. They come in all shapes, sizes and quantities, but lawyers should not be put off electronic Disclosure because commentators (rightly) remind them that their Disclosure, given electronically or not, includes other sources of information.

Part of the purpose of this site and of my business is to remove some of the layers of mystery and to make electronic disclosure accessible to users with little or no experience of it.

This is one of a series of articles aimed at demystifying the processes of e-Disclosure. The series includes:

Introductory

e-Disclosure for Everyman

e-Disclosure - the basics

Getting started

Detail

The sources of Disclosure Documents

Documents, Disclosure Data and Metadata

Choosing litigation software

Litigation Support Providers

If, meanwhile, you think that I might be able to help you, please contact me.

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