E-disclosure rules finally enter the 1990s

1 October 2010 by Adam Wagner

Welcome to court

New rules on the disclosure of electronic documents came into force on 1 October. This many not sound as exciting as the trendy new Equality Act 2010, which has also begun operating, but the new rules may be of great significance to the justice system.

A new section has been added to the Civil Procedure Rules providing guidance on the disclosure of electronic documents.

This sounds perfectly sensible. What is surprising is how long it has taken for this much needed guidance to reach the justice system. According to the Ministry of Justice the aim of the new rules is “to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”

Unfortunately, parties to litigation are often left dealing with people with “less”, or sometimes “no”, experience of technology. Those who have been involved in court cases involving electronic documents will know that every institution deals with data differently, and that often the question of whether one is likely to be given access to important documents will depend on the technical competence (or otherwise) of the person handling the disclosure, rather than the document’s relevance to the proceedings. This is equally as relevant to a large company as it is to a hospital or prison. This inconsistency is compounded by the general, although not universal, lack of digital savvy on the part of judges.

Although rules on e-disclosure already exist, the new Practice Direction seeks to regularise the process, recommending early discussion by parties on the use of technology and management of electronic documents as well as revealing the computers systems, devices and storage systems which they control. The parties then must carry out a reasonable search, and various factors such as costs and accessibility are to be considered in deciding what is proportionate. The guidance also provides a handy sample e-questionnaire for parties to fill in, and suggests keyword and automated searches. It even mentions “meta” data, which is a term which looks oddly out-of-place in the mostly tech-allergic procedure rules.

The guidance is long overdue. Email and other forms of electronic communication have been common since the mid-1990s, and even the most luddite of professions and government departments have used email for practically all internal communication for the last decade. The justice system has taken too long to catch up. As one of the Practice Direction’s drafters says in an interesting blog post, informed co-opeartion is needed in order to achieve proportionate disclosure.

Emails can often provide the ‘smoking gun’ in legal disputes. This is because people tend to be less cautious when firing off an email, especially when dealing with the crises which ultimately result in litigation. This means that properly executed data disclosure is crucial for access to justice. Too much money and court time is spent trying to gain access to electronic storage systems, and this means cases are not always resolved justly. For example, individuals fighting against a large and opaque government department are often at a disadvantage, usually due more to incompetence than deliberate concealment.

So, whilst these reforms may seem a little dry, they may be of great importance to the justice system. Now a litigant should expect early and full information from their opponent on what electronic data is available. Failing that, the courts should have enough guidance to direct the process, and can resort to sanctions if necessary. Welcome to the digital age, civil procedure.

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