Electronically stored information (ESI) will be crucial to resolving your dispute. Most of your documents will have been created electronically and an analysis of your ESI will be necessary in order for proper advice to be given on the merits of your dispute.
As a party to the dispute, you are under an obligation to preserve and disclose to your opponent all relevant documents to the dispute including ESI and paper documents. Any document retention policy should therefore be suspended as soon as a dispute arises and all relevant ESI and hard copy documents must be preserved. The process of identifying, preserving, collecting, filtering, reviewing and disclosing ESI is called electronic disclosure (e-disclosure).
There is also an obligation on you to discuss with your opponent the parameters of e-disclosure and the format for exchange at an early stage in the proceedings. In large and complex cases such discussions are encouraged before proceedings are issued.
This guide covers the general e-disclosure process and provides some tips on getting it right. For more about disclosure generally, please see our separate Out-Law Guide.
What ESI will be covered?
ESI contained on or created by:
- personal computers;
- back-up tapes;
- mobile phones;
- email files;
- calendar files;
- PDA devices;
- social networking sites;
- portable data storage media, such as DVDs and USB sticks;
- handheld devices;
- VOIP (voice over internet protocol) devices;
- web-based applications;
- off-site storage;
- document files;
- spreadsheet files.
This list is not exhaustive.
Getting it right
The trick to effective e-disclosure is proper planning and knowing where and how to get hold of relevant ESI effectively and on a cost-efficient basis. E-disclosure can be a huge task, and if not done properly costs can be incurred unnecessarily and you may be exposed to arguments by your opponent that crucial evidence has been lost of not disclosed. This may result in adverse cost orders and other sanctions.
It is necessary to be in a position to file the Disclosure Report, setting out what relevant documents exist; where the documents are stored and with whom and how the documents are stored along with the chosen menu option for disclosure,, and a costs budget setting out the broad range of costs involved in giving standard disclosure within the required time frames. It is also necessary to take part in early mandatory discussions with the other party for the purpose of seeking to agree a proposal to deal with disclosure.
It is essential that your IT department is involved in early discussions about e-disclosure, particularly those about the identification and collection of relevant ESI. The Electronic Documents Questionnaire that forms part of the court rules can be used as an agenda for discussions amongst your team and in discussions with your lawyers to find out, in particular, where the relevant ESI is stored and how easy it is to access it. It is usual at this stage to take on the services of an external e-disclosure service provider who can offer specialist expertise on these issues. The courts will usually take an active role in managing the e-disclosure process, and it will be important to be able to demonstrate to the court and to your opponent that a proportionate and reasonable strategy has been complied with.
The courts will usually take an active role in managing the e-disclosure process, choosing from a menu of disclosure orders - standard disclosure is just one option. Others include disclosing documents on an issue by issue basis or dispensing with disclosure altogether
It will be important to be able to demonstrate to the court and to the other party that a proportionate and reasonable strategy for e-disclosure has been complied with; where appropriate, directions should be sought at an early stage. A defensible strategy in respect of e-disclosure has to be undertaken otherwise you could leave yourself exposed to criticism by the other party or the court, hence the importance at an early stage in the proceedings for the parties to reach agreement on the use of key words and date ranges, document types, technology that can assist with document review and the format for exchange. The electronic documents questionnaire to be exchanged with the other party can form the basis of any preliminary discussions and the outcome summarised in the Disclosure Report.
When disclosing ESI it is important to bear in mind the following general principles:
- ESI should be managed efficiently in order to keep costs proportionate;
- technology should be used in order to ensure that document management activities are undertaken efficiently and effectively;
- ESI should generally be made available for inspection in a form which allows your opponent the same ability to access, search, review and display the ESI that you disclose to them;
- disclosure of ESI which is of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.
E-disclosure needs to be managed properly to ensure that it takes place in a reasonable, proportionate and cost-effective manner. This will be determined by reference to a number of factors including the amount, location and accessibility of the ESI, the issues and size of the dispute and the cost of e-disclosure. It has to be noted however that proportionality will trump reasonableness when it comes to looking at the costs associated with e-disclosure..
The e-disclosure process
Document retention: at the outset of any dispute it is important that any document retention policy is halted so that relevant ESI is preserved and not destroyed. 'Litigation Hold Notices' must be sent out to employees involved in the dispute and those within the organisation responsible for managing ESI. They should be advised not to delete relevant ESI from your IT systems, including any data on back-up tapes.
Collection: the services of a specialist e-disclosure company can also be employed to collect ESI forensically in order to avoid damaging its integrity. Embedded in almost all ESI is the history of the document itself. This is called metadata, and can include information such as the identity of the original author, the creation date, hidden notes, amendments and details of who is blind copied into emails. The metadata can be altered by an act as simple as opening and printing a document, and this may be damaging to your case. Dealing with ESI must therefore be carefully managed.
On some occasions, for example where ESI has been destroyed, it may be necessary to search deeper into your computer systems. For this, computer forensic specialists will need to be employed.
Searching and filtering: given the potential for huge volumes of ESI to be involved in any dispute, it will be necessary to reduce the volume for review by your lawyers. Once the ESI has been collected it can be searched and filtered, for example through the use of subject or key word searches, date ranges and more sophisticated methods. Duplicate data will also be removed, which will reduce the overall volume of ESI to be reviewed.
It is important for the parties to reach agreement on the use of key words and date ranges, document types and the format for exchange early in the proceedings.
Document review: after the filtering process has been completed, images of the ESI can be loaded onto a web-enabled document review system which will be accessible to you, lawyers and other parties involved in the case. Any hard copy documents which have been scanned, coded and cross-referenced to their original source can also be included. The electronic database is then ready for online review.
The review process will usually involve a 'first pass' by your legal team, who will review for relevance, privilege and other issues. A further review will then be carried out by your lawyers to analyse the evidence, annotate and categorise the documents.
Disclosure: once all the relevant and non-privileged ESI has been identified, it can be listed electronically and electronic copies can be provided in a format agreed with your opponent. A disclosure statement will have to be signed by the person within your organisation who has overall responsibility for the disclosure process. This must state the extent of the search for relevant documents, including whether or not a search for ESI has been carried out and the parameters of any search. Your lawyer also owes an independent duty to the court to ensure that proper disclosure is given.
Your opponent's ESI can also be uploaded onto the document review system for you to search and review.