e-Disclosure

In an article entitled ‘A shock to the system’ in the New Law Journal of 23 January, Ed Sautter and Alfred Church considered the decision in Digicel v Cable & Wireless [2008] ALL ER (D) 226 and its guidance on three fundamental areas of electronic disclosure: (1) The importance of discussing electronic disclosure at an early stage in the proceedings; (2) the use of keyword searches; and (3) the restoration of back-tapes. (1)The practice direction to CPR Part 31 makes it clear that parties are expected to discuss the scope of their electronic disclosure at an early stage of the proceedings and Digicel highlights the considerable risks of not entering into these discussions at an early stage. (2)The rationale for the inclusion of keywords is something that claimants should bear in mind when making an application for specific disclosure, and indeed could have an impact on the drafting of statements of case and inter-solicitor correspondence. If a party wants particular keywords to be included in disclosure searches, it should consider ensuring that these words, or the issues to which they relate, have previously been highlighted in this way to the other side. (3) The restoration of back-up tapes is a notoriously time-consuming and expensive process and parties will often try to avoid the use of back-up tapes in disclosure. For requesting parties, the option of cost shifting maybe attractive where the court is likely to determine that the producing party’s disclosure has been reasonable and therefore is unlikely to order the restoration of back-up tapes. If the back-up tapes are important to the requesting party it can, in effect, offer to pay for their restoration. For producing parties, cost shifting may represent a useful defensive tactic. In cases where the reasonableness of the search is debatable, a producing party could offer its back-up tapes to the requesting party. The option of doing so introduces a new dynamic to the disclosure negotiations.