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| Issue No: | 32 |
|---|---|
| Published: | Winter 2006 |
| Article No: | 5 |
| Author: | Tony Thiary |
| Title: | Electronic Disclosure Policies |
Tony Thiaray argues that the dependence on paper documents as the major source of evidence in civil litigation will diminish over coming years. Electronic disclosure is the review and production of evidence for litigation stored in electronic format. It includes email, word-processed documents, databases and presentations. The data contained within this material can be stored or found on many different forms of media (e.g. floppy disks, tapes, CD, USB flash drives etc).
Why adopt an E-Disclosure Policy?
When information is created electronically, it is not just the ‘printable’ product that may be subject to disclosure in a court case or arbitration. Electronically embedded in almost every electronic document is a history of the document itself, from which specialists can deduce the original author, the date of creation and any hidden notes and alterations, to name but a few. Such information may be crucial in issues of disclosure, for example, the fact that a document was reviewed, edited, and then printed may be the difference in winning or losing.
Thought, therefore, needs to be given to the way in which electronic media and documents are stored; importantly, their location, accessibility, and the types of storage facilities utilised. A client with effective document management and retention policies is likely to find the e-disclosure process more manageable and potentially cheaper.
Of course, expenditure in e-management must be reasonable and proportionate for purposes of disclosure and this will depend on the nature of the dispute and the issues involved, the relevance of the information and importantly the financial implications for undertaking and performing such a search.
Clients are often unaware, through no fault of their own, that electronic data in their possession, created and exchanged between themselves, their legal advisors and other third parties, may at some stage have to be presented and disclosed in a manner that is both manageable and comprehensible to all parties including a Tribunal.
The purpose behind an e-disclosure policy is to ensure a party complies with the disclosure and production requirements, in addition to the costs element attached to the supply and presentation of such information, irrespective of outcome. Such a policy should impose a duty and obligation on a client to undertake genuine and proportionate searches of all electronic documentation.
Disclosure in construction disputes is a major undertaking not solely because the type and formats of physical documents used but also because of the vast number of records kept in various locations and because of the host of people involved within such projects. The author recognises that the electronic storage of an e-mail as compared to the scanning and retention of large-scale plans represents different challenges for this industry; nevertheless, these difficulties are not insurmountable.
Not every case will warrant freezing a copy of the servers but there can be few cases where it would be neglectful, and perhaps negligent, to overlook electronic sources of potentially disclosable documents. In a recent construction case a client's electronic files included numerous time-dated digital pictures of the alleged poor workmanship by the contractor and these were very helpful to the legal team.
In any case, one is unlikely to avoid having to deal with electronic documents in one way or another for disclosure purposes. Furthermore, and of particular significance, the case of Hands v Morrison Construction Services Ltd (2006) emphasised the gravity of electronic disclosure within this particular sector. It related to a claim against a construction company, in which the applicant sought an order for the production of approximately 850,000 lever arch files, and 550 files of hard copy documents! It is, therefore, of cardinal importance that practitioners within this sector have in place a comprehensive and workable electronic retention policies, should the worst case scenario ever arise.
Should you require any further information in relation to the above area of law please do not hesitate to ask!