A litigation lawyer knows that documentary evidence to support a claim can be key to its success or failure. The procedural rules that are followed place great emphasis on ensuring that appropriate documents are disclosed to the opponent. A recent case serves as an expensive warning to businesses to act appropriately in disclosing documents, should you ever find yourself involved in a litigation matter.  

What is electronic disclosure?  

Documents now are not just pieces of paper. Electronic documents must be disclosed too and these can include audio and video recordings, data held on a PDA or mobile phone, microfilmed records, computer databases and disks and information stored on servers and back up systems. This is electronic disclosure (also known as e-disclosure) and just as the documents are different the court rules (some may say belatedly) are adapting to the different media.  

Obviously this may mean that what was already a time consuming and cumbersome process becomes increasingly unwieldy and the rules therefore attempt to put limits in place to ensure that what is done is proportionate to the issues involved in the case. Many lawyers therefore adopt the approach of not searching for or reviewing certain types or classes of documents and for smaller claims this may be entirely appropriate.  

To what extent do you have to search for electronic documents?  

A recent case has highlighted that e-disclosure can be an onerous and very expensive exercise. The case concerns a claim by Digicel, following the liberalisation of the Caribbean telecommunications market, that the incumbent providers had deliberately delayed interconnection with their networks. As a result of which it is claimed Digicel have suffered loss in excess of £3 million .

As a result of which it is claimed Digicel have suffered loss in excess of £3 million . The case is yet to be heard but the issues which the court gave judgment on recently concern the documents.  

The defendants in the case searched their electronic documents and identified 1,140,000 potentially relevant documents. The lawyers worked from that group of documents to identify those that were relevant using key word searches and searching for ten key words. They then subjected what they had left to an automatic deduplication process to remove copies of identical documents, reducing the number of documents they had to consider to 197,000. The lawyers then manually reviewed those documents to identify 5,212 documents they had to disclose to the claimants. This exercise took 6,700 hours of lawyers’ time and cost the defendant £2 million in legal fees plus expenses! The issue before the Court was whether this exercise had been enough and the Court concluded that it was not, back up tapes containing e-mail accounts of named individuals who had left the defendant’s employment had not been searched and the key words used were insufficient. The defendants were therefore ordered to search the back up tapes and both those and the documents already searched for the additional key words.  

The effect of the order is that the cost of the whole exercise is likely to be significantly more than it would have been had the parameters for the search included these matters at the outset. Furthermore the defendant’s back up tapes were not organised or catalogued their purpose being to assist in disaster recovery and this made recovery of the documents even more difficult.  

A reasonable and proportionate search  

In a large claim the extent of the search for documents should be much broader than it will be in lower value claims. The Court rules recognise this requiring that the search should be:  

  • reasonable in view of all the circumstances of the case; and  
  • proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.  

However the signs are that a practice of not searching through and disclosing e-mails and other electronic records is no longer likely to be sanctioned by the court. A Judge in another case has already referred to the Digicel case with approval.  

Dealing with disclosure of documents is a necessary part of litigation and we’ve already indicated that a case can succeed or fail on the documents alone, as indeed the claimants expect to happen in the Digicel case. The cost of disclosure should not however act as a deterrent to pursuing a good claim or a good defence.  

Lessons to learn to minimise the costs of disclosure

  • Document retention policies should plan for the possibility of litigation and disclosure – in this case including a system that allowed the easier retrieval of former employees e-mail accounts may have avoided the need for retrieval of back up data;  
  • Not searching or refusing to search a group or groups of documents is risky;  
  • The parties in the Digicel case had not discussed or planned for how they would deal with disclosure of documents. The Court rules advise discussion between the parties and the Judge was very critical of the failure to agree an approach stressing that the lawyers should have discussed these issues and cooperated to resolve them. Had this happened the cost of the exercise may well have been significantly reduced.