ELECTRONIC DISCLOSURE
Friday, April 23rd, 2010The conduct of litigation (at least in common-law jurisdictions) has traditionally required each party to conduct a reasonable search for (and give disclosure to other parties of) all documents upon which they rely and/or which adversely affect or support any party’s case. The disclosure is carried out by serving a ‘list’ of documents, together with a ‘disclosure statement’, setting out the extent of the search and reasons why certain documents are being withheld.
Research carried out by the University of California in 2003 concluded that, even by that date, in the business world approximately 90% of documents were being created and stored electronically by word processors, email, in databases and through a variety of other devices ranging from personal computers and servers to Personal Digital Assistants (“PDAs”), mobile phone text messages, voicemails, and even computer printers, photocopiers and fax machines. It has now become easier to communicate electronically by email, by text and other means, so much so, that it is now estimated that only 20% are being converted to hard copy. In the face of these changes the process of disclosure pursuant to court proceedings has had to adjust accordingly.
There has been no wholesale rewriting of the rules relating to disclosure nor have the courts attempted to fashion rules to govern the disclosure solely of “electronic” documents. The obligation to disclose is governed by Civil Procedure Rule (CPR) 31 and is the same for both electronic documents and conventional ones. Standard disclosure requires each party to undertake a reasonable search. The disclosure of electronic documentation has however received some special attention in the form of PDs which give guidance as to how (and just as importantly when) parties to litigation should give thought to any particular issues arising from the need to identify and disclose relevant electronic documentation.
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