Recent Developments In E-Disclosure

In his final report on civil litigation costs in England and Wales, Lord Justice Jackson identified e-disclosure as a significant element of litigation costs and advocated clearer, more efficient and cost effective ways of managing Electronically Stored Information (ESI). The Jackson report endorsed the draft Practice Direction on e-disclosure produced by a working party chaired by Senior Master Whitaker. The draft PD is currently being considered by a sub-committee of the Civil Procedure Rules Committee (CPRC) and in Gavin Goodale v The Ministry of Justice Senior Master Whitaker directed that the questionnaire that is attached to the draft PD should be used. Although the draft PD and questionnaire have not yet been formally approved by the CPRC, the decision indicates that parties will in future be encouraged to use the questionnaire as best practice.

Balanced approached to e-disclosure

In large-scale litigation, large amounts of ESI are often stored in various formats and in various systems and devices. Parties either carry out insufficient searches, or comply with their disclosure obligations but at great expense. Incorrect disclosure can lead to costly corrections, as the decision in Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others showed when the defendants were ordered to redo their ESI search at an additional cost of approximately £2 million.

In the case before Senior Master Whitaker the defendants had largely agreed the disclosure of documents in paper form, but argued that it would be disproportionate to carry out a search of ESI because of the quantity of documents that they would have to search. Senior Master Whitaker dismissed these arguments and ordered disclosure of ESI, stating that there were important disclosable documents held in electronic form.

Senior Master Whitaker did, however, note that a review of documents should not be unnecessarily wide. What is required is a considered and staged approach that makes e-disclosure the least expensive and most proportionate exercise possible.

The draft e-disclosure questionnaire

In order to help with the e-disclosure process, Senior Master Whitaker directed the defendants to answer a copy of the questionnaire that is attached to the draft PD. This is a notable development as the questionnaire has yet to be approved by the CPRC for publication.

Senior Master Whitaker attached the questionnaire to the Schedule of his judgment and is the first to use it as a tool...