Pictured above: Emma Anderson
The introduction of recent guidelines on the disclosure of
electronic documents in litigation could potentially have far
reaching consequences. Most businesses now operate amid an
avalanche of electronic communication and computer data.
But Harvey Ingram associate and specialist Dispute Resolution
lawyer Emma Anderson, is urging companies to ensure critical
documents are safely ring-fenced if they are facing litigation - or
face the consequences.
Anyone involved in a legal dispute will be well aware of their
obligation to disclose documents to the other side. What is perhaps
less well known is that the definition of "a document" is wide
ranging and covers a plethora of electronic data such as e-mails,
voicemails, text messages, information stored on memory sticks,
mobile phones, as well as deleted documents stored on back-up
systems.
Set against this background, it is clear that trawling through
years' worth of electronic information to find relevant documents
could be a daunting task, especially given that more than nine out
of 10 key commercial documents are now stored electronically amid
an incremental growth in the volume of our electronic
data.
Recognising the onward march of the electronic age, the Ministry
of Justice recently issued guidance on how to manage, protect and
prepare, should businesses be obliged to make disclosure of
electronic documents or "e-disclosure".
Emma Anderson says: "The key change introduced by the new
practice direction on e-disclosure is to impose an immediate duty
on all to preserve and safeguard all relevant electronic documents
as soon as litigation is contemplated.
"Having isolated and ring-fenced those e-documents that may be
relevant, the next step is to give detailed thought as to where
they are stored, key personnel who can help retrieve the data and
to line up a solicitor to advise on the extent of the search that
should be made."
As a golden rule, any data search should be shown to be
reasonable and proportionate. At the same time parties must not
over-disclose. The new guidelines insist that searches should be
carefully tailored and capable of accurately finding relevant
information rather than offering a tangled, incoherent mass of
documents which is likely to be penalised by the court. A careful
decision therefore has to be made on what is reasonable and
proportionate.
Parties are also encouraged to agree the scope of their search,
agree key search words, whether searches should be made in stages,
whether specialist IT services are needed - and at whose cost.
Failure to co-operate or search in a reasonable and proportionate
manner may well prompt adverse inferences from the court and even
costs penalties.
What this all means is that organisations need to ensure their
data is kept in a manner which enables documents to be retrieved
efficiently and effectively. Early indications suggest that the use
of IT specialists will become commonplace in litigation, while
careful processing and storage of your data now could save time and
money in the long run.
At present this obligation applies just to e-documents - there
is no corresponding obligation in respect of traditional documents.
However, it is not beyond comprehension that the Ministry of
Justice looks at extending these new obligations to cover all
documents - both paper and electronic. Given the thought and effort
taken in drafting the e-disclosure obligations, this is a very real
possibility and one which businesses involved in litigation cannot
afford to ignore in the future.
For more information about Harvey Ingram, please visit their
website here: www.harveyingram.com