On 1 October 2010, a new rule was added to the Civil Procedure Rules to require the parties to address the issue of electronically stored information.

With the advent of computers and email the volume of material that is generated in all organisations has expanded astronomically. As a result, the disclosure and inspection process has become progressively more cumbersome and expensive – to the point that the costs associated have the potential to be disproportionate.

New rule

Rule 31B of the Civil Procedure Rules aims to help put a framework in place to control this cost in all claims except those on the small claims track. It is based on an appreciation that the cost of extracting data, performing keyword searches and sorting and filtering the material is significantly lower when the parties work from the (native) electronic files (i.e. the .doc, .xls and .msg files which were created at the outset), rather than relying on either hard copy printouts of those files or scanned images created from paper records. This is especially applicable where there are large volumes of material (as is often the case).

Potential costs savings

The cost associated in processing the equivalent of 150 lever arch files of material which is in electronic format (so as to create an index and an ability to perform word searches across the material), is in the region of £200. The cost of performing an equivalent exercise on a paper copy of the same material will be in excess of £20,000. The reasons for this huge difference in cost include the facts that:

  • The electronic files are “machine readable” from the outset.
  • The electronic files contain their own metadata (details such as author, date, to, from, description etc) which can be harvested using computer scripts to build a schedule of the material, rather than being dependent on manual coding.

Beyond this initial saving there are further major benefits:

  • Each native file has a unique “fingerprint”, which transforms the otherwise time-consuming, imperfect and expensive exercise of identifying duplicates into something that is trivially easy to do.
  • There is scope to perform preliminary filtering exercises to reduce the volume of material – using a combination of date ranges and searches.
  • The data is “portable” – copies can be transferred between parties, experts and counsel at low cost.

Implications

There are a number of practical implications, which all centre around the policies adopted for the filing and retention of electronic material.

In an organisation where material is filed against matter numbers allocated by the finance department, the cost of retrieving the material and being able to demonstrate that a proportionate/reasonable approach has been adopted will be modest. This situation is normally coupled with the working practice of holding all relevant electronic data in the designated matter directory or, possibly, on the email system.

At the other extreme, to the extent that users can save data wherever they like on the network, retain data on their own PCs, USB sticks and CDs and use webmail and other internet based systems to hold data, the cost of tracking down and making the relevant data available will be significantly higher.

There is, therefore, a key practical issue which all organisations should be addressing - how, either by investing in document management systems and policies or simply by tightening up on the rules as to where data is stored, can systems be rationalised to reduce the overhead associated in providing e-disclosure?

Practical steps

It is important – before rushing in and seeking to perform keyword searches using the basic search functions built into the operating system and programmes – to have:

  • A clear set of search terms.
  • A method of documenting what searches are made and the location of the files that are returned by the search.
  • A plan to address the fact that all PDF, tiff and other files which contain images of documents do not contain text which is “machine readable”.
  • An understanding of the limitations of the basic search functions – for example the standard Microsoft Outlook email search function does not operate on attachments to emails.

It is vital that where a collection of files has been copied onto a CD or USB drive, there is a clear record of:

  • Which search found which file.
  • The original location of the files.
  • Metadata such as the “creation date” of the file.
  • What keywords were used.

Risks

To the extent that the process of e-disclosure is performed without a clear, documented, plan which has been agreed with the other parties in advance, there are significant risks that the whole exercise will have to be redone, with the attendant cost and inconvenience involved.