The introduction of Practice Direction 31BOn 1 October 2010, a new practice direction, 31B on the disclosure of electronic documents comes into effect. The new practice direction is designed to encourage and assist the parties to reach agreement on the disclosure of electronic documents in a proportionate and cost-effective manner and offers detailed practical guidance.

The early exchange of information is required and encouraged so that informed discussions can be held between parties and decisions made about the scope of electronic disclosure. The use of technology and techniques to reduce the scope and burden of e-disclosure is also recommended.

Practice Direction 31B applies to all cases issued after 1 October which are allocated to the multi-track, although the courts will have discretion to apply the new provisions to cases issued before that date and to other cases as deemed necessary by the court?

Why the change?It has long been a requirement in civil litigation for parties to consider electronic documents in the disclosure process. In October 2005, a practice direction was introduced with specific requirements related to the disclosure of electronic documents. While some parties embraced these requirements, many have shied away from following the guidance offered. This was highlighted by Lord Justice Jackson in his report on the costs of civil litigation. A number of cases have also reached the court recently in which the management of e-disclosure has resulted in wasted costs, cost sanctions and the collapse of cases. Three judgments have drawn attention to the importance of e-disclosure:Challenges and risksDisclosure is more challenging now that large volumes of electronically stored information (ESI) are available. Where do you look and how do you look when the evidence is not in lever-arch files anymore but all over a company’s terabyte-sized network and on various devices like laptops, external hard drives, memory sticks, BlackBerrys, etc?

  • Digicel (St Lucia) Limited and others v Cable & Wireless plc and others [2008] EWHC 2522 (Ch);
  • Abela and others v Hammond Suddards (unreported);
  • Earles v Barclays Bank PLC [2009] EWHC1 (Mercantile).

Understanding how IT infrastructures work and how to use legal technology tools and techniques to search them in a proportionate way has become essential. Despite the challenges, ESI cannot be ignored; parties who do so run the risk missing key evidence or non-compliance with the disclosure duties set out in the Civil Procedure Rules. Practice Direction 31B provides detailed guidance on how to address the challenge of finding what is relevant in a proportionate way.

Implications for legal practice Mandatory requirements: the language of the new practice direction is mandatory, whereas that in the previous practice direction was couched in more permissive terms. A more cautious approach to e-disclosure will now be required to avoid being ordered by the court to do more and to avoid penalties for adopting an unreasonable approach (which is what happened in the Digice and Earles cases).

Discussions between parties: Practice Direction 31B emphasises the need for early and ongoing communication between the parties so that they can agree on a sensible approach. It sets out an agenda that parties must discuss before the first case management conference (CMC) and suggests that in heavy or more complex cases they might do so even before proceedings commence. Discussions should cover:Exchange of information: Agreeing an approach to e-disclosure requires an understanding of the ESI available. Parties need to exchange information about their ESI, on what media and in what format it is stored, how it has been organised, what volume there is and where there is likely to be duplication. Lawyers will effectively need to carry out ‘data mapping’ exercises with their clients and IT experts so that they understand their client’s IT systems and data management practices. The practice direction introduces the Electronic Documents Questionnaire as a means of obtaining and exchanging the required information in a structured way. It requires parties to provide detailed information about the electronic documents and storage systems. They also need to indicate the sources they propose searching and any technology tools and techniques they propose using. While the use of the questionnaire will not be compulsory, it is an aide to good project management and there are likely to be tactical advantages in using it before being ordered by the courts to do so under time pressure.

  • the ESI parties have in their control;
  • the extent of the search for relevant documents;
  • software tools and techniques to reduce the burden and cost of e-disclosure;
  • preservation; and
  • formats for exchanging documents.

The reasonable search: Lawyers will also need to make assessments about how far to extend the ‘reasonable search’ for electronic documents and which data storage locations are ‘reasonably accessible’. The questions that arise are similar to those used when preparing for the disclosure of paper documents – what sort of evidence is needed to advance your case, who has it and where is it?

The assessment has become more complex now that so much more electronic evidence is available in many locations. Practice Direction 31B restates and extends the guidance in Civil Procedure Rule 31.7 on the factors that should be taken into account. It also offers guidance about the selection of data sources, stating that a staged approach might be appropriate and that the primary source of disclosure will normally be ‘reasonably accessible data’.

Agreeing an approach:The aim of the practice direction is to encourage opposing parties to reach agreement on reasonable measures to get to the key information in a case proportionately. The practice direction and questionnaire facilitate this process by providing a uniform agenda of discussion topics and the means for parties to exchange information in a structured way and flush out contentious issues before court intervention is required.

Before the first CMC, the parties must submit summaries of matters on which they agree and disagree in relation to e-disclosure. Where parties cannot agree the court will give directions..

Use technologies and proportionality techniques: Practice Direction 31B recommends the use of technology as means of managing documents efficiently and effectively. Software aided keyword searching and other forms of automated searching are referred to with guidance on proper use.

Techniques that ensure e-disclosure is carried out proportionately are suggested, including adopting a staged approach by focusing first on key individuals, date ranges and document sources, and relying on data sampling to check the likelihood of locating relevant evidence in sources.

ConclusionMuch of the guidance set out in PD31B on how to approach e-disclosure is based on current best practice and lessons learned from cases. Parties who consider it at an early stage will not only ensure compliance with disclosure duties but also stand a real chance of reducing the burden and cost associated with e-disclosure. Technical know-how has become more important and lawyers are preparing by attending training course. Technical experts can also provide invaluable assistance as ESI is assessed and search strategies are formulated, providing information, opinions and cost estimates that will help determine what is proportionate.

Daniel Kavan is an electronic evidence consultant at Kroll Ontrack. Tracey Stretton, is a Legal Consultant at Kroll Ontrack