Electronic documents: Indecent disclosure

In a recent case I was involved in, a party purported to give electronic disclosure. All this amounted to was scanning and collating a series of emails and documents on to a CD and hard disk and sending it to the other side. This is not electronic disclosure as provided for by court rules. In fact, there is quite a lot more to the procedure than that and parties would be well advised to think about the process, costs and need for electronic documents before going down.

Electronic disclosure has coincidentally, and perhaps ironically, come along at a time when there is substantial pressure to reduce the cost of litigation. I say ironically because electronic disclosure is far from cheap and can be very involved. It is a process that can start all sorts of enquiries running as IT specialists pull up and reveal the history of documents.

Yet the disclosure process was named in the Woolf reforms as one area where parties were spending vast sums of money, often without much tangible return. As a result of the reforms, certain arbitration rules now provide for limited disclosure only of documents relied on or requests for specific disclosure of classes of documents.

The reality is that electronic disclosure is becoming more and more important because of the way in which people work. As more and more documentation is created, saved, dispatched, and amended digitally, and contributed to by multiple parties, the precise status of a document becomes increasingly significant in litigation.

Of course, construction is an industry that does generate a large amount of documents and emails. It is also an industry that amends and modifies documents in both the negotiation and build processes, and seeks to work collaboratively. Finally, it is an industry in which many operatives work on remote laptops or use memory sticks and other devices to move documents around. Therefore giving electronic disclosure is not as easy as just downloading documents on the hard drive at head office.

To be given properly, electronic disclosure involves substantial cost. To a degree those costs can be mitigated if the need for electronic disclosure is planned for and operated strictly in accordance with the rules. The key question is: what electronic disclosure is needed and why? The rules suggest that the parties should consider this issue before the first case management conference and decide whether, and to what extent, electronic disclosure is required.

The court ordered the defendants to re-do their document searches, and by this stage they had already spent a staggering £2m on disclosure

The rules contain a broad definition of a document. This extends to emails and other electronic communications, documents created in word processors, and databases. More specifically, it also extends to “additional information stored and associated with electronic documents known as metadata”. Such metadata (the electronic footprint) of a document, while invisible on a printed or scanned copy of a document, is extremely useful as it may contain information such as document comments, previous versions of the document and document profile information. The metadata can disclose who has amended what at what time. This can be significant and limit the level of uncertainty as to what will be said by oral witnesses. The court is unlikely to simply order electronic disclosure without some reason as to why it is needed and what benefit will be obtained.

In the case of Digicel (St Lucia) and others vs Cable & Wireless and others (2008), the defendants sought to provide electronic disclosure, but without agreeing the terms of such disclosure with the claimants. Notwithstanding this provision of documents, the claimants were still successful in applying for an order for the specific disclosure of documents.

The court stressed the importance of the requirement for parties to co-operate on electronic disclosure at an early stage of the proceedings and, if necessary, seek the court’s guidance. As a result, the defendants were ordered to re-do their searches and by this stage they had already spent a staggering £2m on disclosure.

This case really serves to emphasis the point that providing electronic disclosure later on in proceedings in a format required by the other party or the court is highly likely to be more costly, pressured and dangerous than if a proper process is established at the outset, planned and carefully undertaken.

With the extent, nature and type of documents produced on construction projects and the risk of different users, laptops and memory sticks all bearing documents, planning ahead on this issue is vital to avoid a very expensive headache.