Background

From 1 October 2010, a new practice direction on electronic disclosure will regulate the approach parties should take when considering electronically stored material which is relevant to a case.

As part of the new rules, an electronic documents questionnaire will also be introduced. The aim of the practice direction and questionnaire is to focus the parties' minds on the sources of electronic material and give guidance to those with less experience of dealing which such issues.

What is an "electronic document"?

An electronic document is any document held in electronic form. It includes, for example, e-mail and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it includes documents that are stored on servers and back-up systems and documents that have been deleted. It also includes metadata (data about data) and other embedded data which is not typically visible on screen or a print out.

Purpose of the new practice direction

The purpose of the practice direction is to encourage and assist the parties to reach agreement before the disclosure process starts in earnest as to how and what electronic documents need to be disclosed, in a proportionate and cost-effective manner. Unless the court orders otherwise, the practice direction only applies to proceedings that are (or are likely to be) allocated to the multi-track (cases over £25,000 and those which are not straightforward).

Electronic documents questionnaire

Although not compulsory, the practice direction provides that the parties may find it helpful to exchange the electronic documents questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of electronic documents in the proceedings.

In some cases the court will order such an exchange if the parties are not agreed, or the court is unhappy with what they say they have agreed. The answers to the questionnaire must be verified by a statement of truth. Proceedings for contempt of court may be brought if a person makes, or causes to be made, a statement of truth without an honest belief in its truth.

Careful consideration will need to be given at an early stage as to who should sign the questionnaire and whether this will be the legal representative or a person holding a senior position in the company, for example the IT director. Where the legal representative has signed a statement of truth on behalf of the client, that lawyer will still need to verify that the person who has asked them to sign believes the facts stated in the questionnaire are true.

Selecting the most appropriate person will also be important because the person signing the questionnaire should attend the first case management conference and any subsequent hearing at which the disclosure of documents is likely to be considered.

Comment

The obligations under the new practice direction are pretty onerous. It loads the e-disclosure exercise up front, which has cost implications on any litigation in which an organisation may be involved. Organisations will now need to think harder about issues relating to electronic disclosure, and do so at an earlier stage in the proceedings. The task of signing the questionnaire, if one is to be exchanged, will also need to be taken seriously and careful consideration as to the most appropriate person to sign off on the questionnaire will need to take place at the outset.