Goodale v Ministry of Justice – draft questionnaire [2010] EWHC B41 (QB) http://www.bailii.org/ew/cases/EWHC/QB/2009/B41.html

As reported in last month’s update, despite the strong endorsement given to the draft e-disclosure practice direction and ESI (electronically stored information) questionnaire in the Jackson Report, the Civil Procedure Rules Committee (CPRC) has decided that they need to appoint a sub-committee to consider the issues further. These documents have been worked on for almost two years by Senior Master Whitaker’s drafting group and there is general frustration at this delay given the urgent need for guidance on this topic.

Shortly after the CPRC’s decision last month, this judgment of Senior Master Whitaker (given in November 2009) helpfully became available. It is of particular interest because annexed to it is a copy of the draft e-disclosure questionnaire which the defendant was required to complete. This means that we can now all see and use the questionnaire if we wish (even if we do not yet have guidance from the practice direction) and other judges can require parties to complete it even though it has not yet become part of the CPR.

This judgment also offers genuinely practical guidance about the approach parties and the judiciary should take to e-disclosure. With the exception of the Digicel and Earles cases, judicial guidance of this type has been rather thin on the ground. The claims are brought by several prisoners who were dependent on opiates and then subjected to a “one size fits all” detoxification regime when they were admitted to prison. This policy is alleged to have caused them unnecessary pain and suffering and in one instance a prisoner died. The Ministry refused to search for any electronic documents during the relevant period between 2000 and 2009 on the ground that it would be disproportionate to do so.

The judge held that the Ministry’s blanket refusal could not be justified. It was appropriate to adopt a staged approach to e-disclosure, starting with the data available from four key witnesses held on live servers or local computers. Back-up tapes are notoriously more expensive to search and it might be that it would turn out not to be proportionate to interrogate the back-up tapes at all.

31 key words were suggested by the parties. The judge ordered them to run limited searches without reviewing the documents to see how many documents each of the 31 terms will turn up so as to establish whether all 31 are necessary. Only once this rather crude method is used to find out what documents might exist will it be appropriate to proceed on to the reviewing stage since the volume of documents dictates the method and software used for review.