Electronic disclosure in England and Wales

Out-Law Guide | 25 Nov 2020 | 10:28 am | 8 min. read

Electronically stored information (ESI) is crucial to resolving your disputes and complying with your disclosure obligations.

The vast majority of your documents will have been created electronically - 99.7% of correspondence is electronic - and a robust analysis of your ESI will be necessary in order for proper advice to be given on the merits of your dispute, and for the disclosure to be carried out in an effective and defensible manner.

Failing to deal with the gathering, review and disclosure of ESI effectively is neither cost effective nor strategically advantageous, and may put you in breach of duties to the court. On the other hand, a well planned and executed disclosure project can put you in the driving seat tactically and keep costs proportionate.

Developing a clear disclosure strategy at an early stage is essential in light of court rules in England and Wales. These require a disclosure report or disclosure review document (DRD) containing details of your proposed disclosure and the associated costs to be filed at court before the first case management conference (CMC). Courts are ordering more tailored disclosure orders using technology to assist in the process.

As a party to a dispute, you are generally under an obligation to preserve all documents which are potentially relevant to the dispute, including ESI and paper documents. Any document retention policy involving automatic deletion or destruction of documents should therefore be suspended as soon as a dispute arises and all relevant ESI and hard copy documents must be preserved.

The process of identifying, preserving, collecting, filtering, reviewing and disclosing ESI is called electronic disclosure (e-disclosure).

There is also an obligation on you to discuss with your opponent the parameters of e-disclosure and the format for exchange of documents at an early stage. In large and complex cases such discussions are encouraged before proceedings are issued.

What is ESI?

ESI includes:

  • emails, such as on Outlook, Hotmail or Gmail;
  • document files, such as in Word;
  • spreadsheet files;
  • databases;
  • information on servers and back-up tapes/systems or in off-site storage;
  • information on mobile phones including, for example, applications, text messages and voicemail;
  • information on conferencing or collaboration platforms such as Microsoft Teams and Zoom;
  • messages and other data on messaging apps such as WhatsApp and Facebook Messenger;
  • calendar files;
  • content on social networking sites;
  • audio or video recordings;
  • information on CDs, DVDs, USB sticks, memory cards and other portable storage devices;
  • data on smart devices including games consoles, car tracking systems and smart speakers;
  • any information stored on voice over internet protocol (VOIP) devices;
  • other information on personal computers, laptops or handheld devices.

This list is not exhaustive.

ESI extends to the metadata sitting 'behind' documents – see further below - and other embedded data. Even if you believe information has been 'deleted', it may still exist on devices or their back-ups.

Getting it right

The key to e-disclosure is proper planning. Understanding what you are seeking from your documents, what the other side is likely to seek from you, and how to acquire it should be the primary factors to be considered. E-disclosure can be a huge task. If not done properly, costs can be incurred unnecessarily, and you may be exposed to arguments by your opponent that your disclosure has been disproportionate or crucial evidence has been lost or not disclosed. This may result in adverse cost orders and other sanctions.

Failing to deal with the gathering, review and disclosure of ESI effectively is neither cost effective nor strategically advantageous, and may put you in breach of duties to the court. On the other hand, a well planned and executed disclosure project can put you in the driving seat tactically and keep costs proportionate.

It is essential that your IT department is involved in early discussions about e-disclosure, particularly those about the identification and collection of relevant ESI. Do not assume what has been completed in the past on previous cases or collections should be applied without considering alternatives. This space innovates and moves quickly, and there may be alternative ways to complete the process that are more efficient from a costs perspective. The DRD or electronic documents questionnaire (EDQ) that form part of the court rules should be used as an agenda for discussions amongst your team and with your lawyers to find out, in particular, where the relevant ESI is stored, how much there is and how easy it is to access it. It is usual at this stage to take on the services of an external e-disclosure service provider who can offer specialist expertise on these issues.

Once you have this input, you will be in a position to prepare the disclosure report or DRD for the court setting out, for example: the issues on which the court will need disclosure; what documents exist; where the documents are stored, and with whom and how; the chosen desired menu option or 'model' for disclosure in relation to each issue (see below); and a costs budget setting out the costs involved in giving the disclosure sought within the required time frames. Parties are required to provide the court with a range of other information about their proposals for the e-disclosure process. It is also necessary to take part in early mandatory discussions with the other party for the purpose of seeking to agree a proposal to deal with disclosure.

The courts take an active role in managing the e-disclosure process. It has long been possible for the courts to choose from a 'menu' of disclosure orders which it might make - "standard disclosure" of all relevant documents which support or damage a party's case is just one option. Under the Disclosure Pilot currently operating in the Business and Property Courts of England and Wales, the courts must choose from a range of disclosure models, ranging from narrow to broad, for each of the key issues in dispute in the case. It will be important to be able to demonstrate to the court and to your opponent that a proportionate and reasonable strategy for e-disclosure is being proposed and adopted.

A defensible strategy in respect of e-disclosure has to be undertaken otherwise you could leave yourself exposed to criticism by the other party or the court. As a result, it is crucial for the parties, from an early stage in the proceedings, to reach agreement on points such as the use of key words and date ranges, document types, technology that can assist with document review and the format for exchange, and to liaise about these on an ongoing basis. The EDQ or DRD should form the basis of the parties' discussions and the outcome summarised for the court in the appropriate format.

When disclosing ESI it is important to bear in mind the following general principles:

  • ESI should be managed efficiently in order to keep costs proportionate;
  • the right technology should be used in order to ensure that document management activities are undertaken efficiently and effectively - the courts now expect this;
  • ESI, including metadata, should generally be made available for inspection in a form which allows your opponent the same ability to access, search, review and display the ESI that you disclose to them;
  • disclosure of ESI which is of no relevance to the proceedings must be avoided.

E-disclosure needs to be managed properly to ensure that it takes place in a reasonable, proportionate and cost-effective manner. This will be determined by reference to a number of factors including the amount, location and accessibility of the ESI, the issues and size of the dispute and the cost of e-disclosure.

The e-disclosure process

Document identification and preservation

At the outset of any dispute it is important that any document retention policy involving the deletion or destruction of documents is halted so that relevant ESI is preserved and not destroyed.

'Litigation hold notices' or 'document preservation notices' must be sent out to individuals involved in the dispute and those within the organisation responsible for managing ESI, giving clear instructions about the need to preserve documents. They should be told not to delete relevant ESI from your IT systems or any other relevant sources, including any data on back-up tapes or servers.

Collection

The services of a specialist e-disclosure company can be employed to collect ESI forensically in order to avoid damaging its integrity.

Embedded in almost all ESI is the history of the document itself. This is called metadata, and can include information such as the identity of the original author, the creation date, hidden notes, amendments and details of who is blind copied into emails. The metadata can be altered by an act as simple as opening and printing or copying and pasting a document, and this may be damaging to your case. Dealing with ESI must therefore be carefully managed in order to prevent the metadata being damaged or altered.

E-disclosure specialists understand what data is available across a wide range of sources and how to collect it, including more novel sources such as Microsoft Teams, Zoom and other collaboration platforms.

On some occasions, for example where ESI has been destroyed, it may be necessary to search deeper into your IT systems. For this, computer forensic specialists may need to be employed.

Searching and filtering

Given the potential for huge volumes of ESI to be involved in any dispute, it will be necessary to reduce the volume for review by your lawyers. Once the ESI has been collected it can be searched and filtered, for example through the use of subject or key word searches, date ranges, custodians and through more sophisticated methods, such as concept searching. Duplicate data will also be removed while maintaining the context of documents, which will reduce the overall volume of ESI to be reviewed.

It is important for the parties to reach agreement on the approach to collecting, searching and filtering ESI at an early stage, and to continue to liaise about these issues to collaboratively complete the process. If parties reach an impasse on the approach to the disclosure exercise it is possible for one party to seek a procedural hearing before the court (a 'disclosure guidance hearing' under the Disclosure Pilot) or make an application.

Document review

After the filtering process has been completed, images of the ESI can be loaded onto a document review system which will be accessible to you, lawyers and, potentially, others involved in the case, such as experts and witnesses. Any hard copy documents which have been scanned, coded and cross-referenced to their original source can also be included. The electronic database is then ready for online review.

The review process will usually involve a 'first pass' review by your legal team, who will review for relevance, privilege and other issues. A further review will then be carried out by your lawyers to analyse the evidence, annotate and categorise the documents.

Technology can be used to assist with the review. Artificial intelligence can be used alongside the legal team to provide more effective analysis by prioritising the key documents in a review set. This can reduce review costs significantly if employed properly. It is important to choose the right tools for the disclosure exercise in each case and, again, to liaise closely with opponents about the approach.

Disclosure

Once the relevant and non-privileged ESI has been identified, it can be listed electronically and electronic copies can be provided in a format agreed with your opponent. A disclosure statement or certificate will have to be signed by an appropriate person within your organisation, generally the person who has overall responsibility for the disclosure process. This must state the extent and parameters of the search for relevant documents. A party's lawyer also owes an independent duty to the court to ensure that proper disclosure is given.

Your opponent's ESI can also be uploaded onto the document review system for you to search and review.

Disclosure is frequently the most critical, and potentially most costly, pre-trial stage of litigation. The effectiveness of a disclosure exercise in its use of technology to identify the relevant documents cost-effectively and quickly is vital to the outcome of a case. Litigants who adapt to this by following the correct methodology and using appropriate technology can save money and gain significant strategic advantages.