E-disclosure: What's inside your computer?

Electronic disclosure of documents, or e-disclosure, is now a fact of life for many firms when it comes to dealing with litigation. Even in small or medium-sized disputes, the parties will need to consider the disclosure of emails and documents held solely in electronic form.

Practice Direction 31B of the Civil Procedure Rules addresses the subject directly, stating that e-disclosure should be “given in a manner which gives effect to the overriding objective”. The overriding objective is to enable the court to deal with cases justly. This includes, among other things, saving expense and dealing with the case in ways that are proportionate to the amount of money involved and the importance and complexity of the case.

Parties are encouraged to discuss the use of technology and e-disclosure before the first case management conference and even, if appropriate, before proceedings are commenced. The schedule to the Practice Direction is an electronic document questionnaire, the completion of which is voluntary but that highlights many of the issues parties will have to address when preparing for e-disclosure. The parties to a dispute are prompted to seek directions from the court at the earliest practical date if it becomes apparent that they cannot reach agreement.

In the interests of maintaining efficient case management, the court is going to reinforce the requirement to deal with e-disclosure properly through costs orders if necessary

The Technology and Construction Court recently reviewed a problematic e-disclosure exercise carried out in a large international construction dispute (West African Gas Pipeline Company vs Willbros Global Holdings). Willbros had a number of complaints in relation to the e-disclosure exercise carried out by West African Gas Pipeline (WAGP). These included the inadequacy of part of the review of WAPG’s documents and failures to assemble relevant documents properly, de-duplicate the documents, deal with redactions in a satisfactory manner, gather together and deal with disclosure of certain document custodians, provide searchable optical character reader copies and provide appropriate searchable fields within a database.

Willbros sought a variation to an existing court order so that WAPG had to pay the costs incurred arising out of that order irrespective of the outcome of the case.It also wanted to recover the costs of the application it was making as a result of the mistakes or errors in disclosure made by WAPG.

The court reviewed each of these areas in turn. Disclosure in complex international construction projects is always difficult but in this case the court viewed WAGP’s disclosure as having caused a number of additional problems. It was accepted that there must be some “give and take” between parties and their advisers in relation to difficulties that inevitably arise in the course of e-disclosure and that these issues should be dealt with through co-operation between the parties. For this reason, some of the matters Willbros complained about were not sufficient to merit an order for wasted costs; they were simply a consequence of the difficulties inherent in e-disclosure itself. Others, however, were more fundamental.

Three problems were identified that gave rise to the court making a wasted costs order: the failure to de-duplicate documents properly, which inevitably led to wasted time and costs; the failure to gather together or “harvest” a consistent and complete set of electronic data for the purpose of e-disclosure; and the failure to review documents that were located in the searches of the electronic database properly. Although the original costs order was not varied, the costs of the hearing at which this application was made and wasted costs caused by deficiencies in disclosure, were awarded to Willbros.

E-disclosure remains a problematic, costly and time-intensive exercise involving liaison between clients, their legal advisers and litigation support providers. In the interests of maintaining the overriding objective and efficient case management, however, the court is going to reinforce the requirement to deal with e-disclosure properly through costs orders if necessary. This emphasises the need in cases where e-disclosure is going to be significant to adopt a co-operative approach with the other side as soon as possible, to assemble consistent and coherent electronic data, and to ensure that it is properly reviewed. These are vital tasks that any e-disclosure exercise should undertake. While the court is likely to show some discretion in relation to the more technologically complicatedaspects of the exercise, it will expect these basic steps to be taken.

Simon Lewis is head of construction at Dickinson Dees