14 November 2011
An updated e-discovery direction means laying the groundwork for a search will be a key component of success. Adam Clemens’ message is clear:
The best litigators undertaking paper-based standard disclosure exercises have always had a feel for what the key documents in a case are going to be, their likely format and where to find them, whether through instinct or ’trial nous’.
That feel is based on early identification of the issues and the setting of disclosure parameters beyond which it may be disproportionate to search. Relevant or critical documents can of course be missed, assuming that the party has owned up to their existence, resulting in possible soul-searching, squeaky bums and litigation paralysis for those concerned, but this is pretty rare.
But things are changing. Instinct may no longer rule where electronically stored information (ESI) is vast and the 2005 practice direction does not cut it. ESI covers documents created, held, altered and distributed in digital form.
Step forward ’Practice Direction 31B: Disclosure of Electronic Documents’, applicable to all multitrack cases from 1 October this year (and all types of cases, irrespective of when brought, with the court’s permission). The direction is designed to meet problems - and not just those of sheer volume - articulated by Senior Master Whitaker in Goodale & Ors v Ministry of Justice [MoJ] & Ors (2009), otherwise known as the opiate-dependent prisoner group litigation.
“When ESI is available metadata - literally data about data - associated with it can easily be unintentionally altered by the very act of collection, which in some circumstances can have a detrimental effect on the document’s evidential integrity,” Whitaker said at the time. “What’s more, ESI can be moved about nationally and internationally, indiscriminately and at lightning speed.”
Take emails, for example. Many generated on a particular topic may be banal.
Some will not and might shed light on, for example, who had access to what information at what point. Perhaps more than that, they might convey a person’s real thoughts, notwithstanding what might have been put in a more sanitised, formal document for widespread consumption.
Parties face the prospect of having to search through and disclose perhaps millions of emails. It is simply impractical to print them all out and then sift them manually, or to read all of them on screen. If held on back-up tapes they will be stored randomly with millions of other irrelevant emails. Depending on the means of storage they may not be readily searchable or retrievable. Systems may have changed, or the laptops used at the time may have been lost or stolen.
Search and deploy
As a matter of principled approach, the start point is this: essentially, the parties are attempting to define and set the parameters of what amounts to a reasonable search under CPR Rule 31(7) and PD31(2) for the purpose of identifying key documents. Discussion between the parties before the first case management conference is mandatory.
The ’it will generate truckloads of documents’ argument will not obviate the need for a search. In Goodale v MOJ the MoJ’s stance was to argue that any search of ESI was disproportionate on grounds of sheer volume. Whitaker said “no can do” and opted for a staged process.
The practice direction firmly encourages early cooperation with a questionnaire to get things going in an attempt to define the scope of a reasonable search. It must be verified by a statement of truth and the party signing should attend the first case management conference. Once the scope is defined, a mechanism has to be found.
One method is to use an outsourced commercial document management system; another is to use a key word or concept search. However, users should beware of the limitations, in the sense that you only find what you look for. A search for documents dated 1 November 2011 might not turn up those described as ’1 Nov 2011’.
Equally, beware what is known as ’confirmation bias’, whereby the searching party inadvertently seeks either to support or confirm a preconception. Put more crudely, the search is limited to evidence that fits the imagined and desired conclusion. Either way, the danger is that a key document or piece of information could be missed, leaving everyone staring into a gaping hole.
The better prepared party will more than likely come out on top and avoid a costs sanction. Being better prepared means drafting the issues so as to be able to set the parameters of any ESI disclosure exercise. This is nothing to do with the virtual world and more to do with good, old-fashioned analysis and distillation of what a case is really about. It sounds simple, but it is an art.
Having a good idea, insofar as this is possible, of what an ESI search might involve in terms of time, resources and cost is also important. It is a source of constant amazement that parties on the wrong end of specific disclosure applications do not produce evidence in support of their contention that a search would be disproportionate.
Being prepared in this way will ensure that parties do not face the prospect of staring into gaping holes in their case.
Adam Clemens is a barrister at 7 Bedford Row