E-disclosure rules finally enter the 1990s

1 October 2010 by


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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

1 comment;


  1. Paul Heathcote says:

    “This inconsistency is compounded by the general, although not universal, lack of digital savvy on the part of judges.”

    In June 1999 I represented myself in Sheffield High Court in a medical negligence claim. The judge reserved judgment, the hearing was adjourned and 2 weeks later I received a document in the post headed ‘Judgment’ within which the judge found for the Defendants. Ten years later I had gathered enough fresh evidence to mount an appeal. I was surprised to find that 10 years earlier the court had failed to formally deliver the judgement in open court leaving me without a court sealed Order dismissing my claim. At a hearing in 2009 a District Judge used HMCS’s CaseMan computer record of my claim to establish that my claim hadn’t been dismissed and was still live. The D’s solicitor confirmed this from his paper record of my claim and, of course, my paper file showed the same. Unfortunately, when I asked that a date be set for the formal handing down of the judgment in open court and a Trial Order dismissing my claim so as to give me the necessary documents to go to Appeal the court manager told me the judgment had been formally handed down in court and an Order dismissing my claim had been made, drawn and sealed by the court but couldn’t say when or supply me with a copy of an Order because ‘the courts paper record of my claim had been destroyed’. The designated civil judge for Sheffield supported the court manager’s position after being asked to comment on my claim by the court manager. This is surprising since the CaseMan initiative was commissioned by the MoJ to eliminate the need for paper records. It seems that HMCS in Sheffield relies on electronic records when it suits which is what I’ve found with the NHS and their electronic patient records, patient admission systems etc.

    Right to a fair trial?? I can’t even get my claim dismissed! I wonder how many Claimant’s are as eagre as I am to get their claim dismissed.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: