See
Part 31 of the CPR as to Disclosure generally, and the
Practice Direction to Part 31 of the CPR which extends the scope
(or, more accurately, defines and clarifies the scope) of electronic
Disclosure, with provisions on the definition of a document, the scope
of the search and the mechanics of handling the documents between the
parties, with an express eye on reasonableness and proportionality.
The Commercial
Litigators' Forum has published a paper called
Electronic Disclosure whose first heading,
The Problem of
Disclosure of Electronic Documents, accurately summarises the gist
of the document. Although now two years old, it remains a useful and
informed guide, particularly the first 19 pages. The rest consists
of a technology questionnaire - useful if you have time but otherwise
more succinctly covered in the Appendix to
the LĩST
draft
Practice Direction of July 2005.
The primary conclusion of the
Working Party's paper of October 2004 was that the existing
provisions of Part 31 and the Practice Direction to Part 31 provided
adequate guidance to litigants and that it would be "both undesirable and impracticable to produce any formal rules or
checklist that would circumscribe the proper exercise, on the facts of
each case, of [the CPR's tests] of reasonableness and proportionality".
The product of the Working Party's recommendations as to the scope of
the search can be found at
www.hmcourts-service.gov.uk/cms/842.htm
The practical problems of exchanging electronic documents fell
outside the Working Party's brief.
To find out more about what YOU can do NOW,
contact me.
