What effect will electronic evidence have on the way litigation is resolved?
We are apparently a computer literate society. Email, the Internet and electronic documents are all common elements of our daily activities, in both our personal lives and in the workplace. We have reached a stage when our familiarity with such media has meant that, at times, the ability to respond almost immediately has led to the bypass of the filtering process that correspondence would normally undergo. Headlines such as Ketchupgate are a stark reminder in this instance, a law firm secretary sent a caustic reply to a senior associate's email request for reimbursement of a £4 cleaning bill, with the exchange being widely forwarded. This imprints on our minds, and those of our employers, that this technology can be risky if not used carefully.
However, over and above considerations of whether emails are being sent to the right person and whether they contain confidential material, it is also worth considering the use of email in the context of litigation.
Electronic documents may now be disclosed in accordance with the Civil Procedure Rules (CPR). The Practice Direction to CPR 31 was amended in October 2005 to require the specific disclosure of "electronic documents", including "those documents that are stored on servers and back-up systems and electronic documents that have been 'deleted'".
Taking this on face value, the amount of disclosure required would be colossal, with figures suggesting that between 80% and 90% of documents are generated electronically. In addition, the cost and time involved in recovering deleted information would be significant.
The CPR tries to temper this increase in the amount of disclosure by introducing a test that requires a "reasonable search" that takes into account a number of factors, which include:
- the number of documents;
- their significance;
- the nature and complexity of the proceedings; and
- the ease and expense of retrieving the documents.
The last point in particular has been the subject of some controversy, with some commentators claiming that businesses with inadequate technology will be able to defeat the requirement for disclosure. Such a concern may well be superfluous with the introduction in the United Kingdom of the European Commission's Model Requirements for the Management of Electronic Records, which will require public companies to ensure that all inbound and outbound electronic mail messages and attachments be captured.
In practice, the changes introduced by the amended CPR may affect a lawyer's behaviour in the lead up to litigation and thereafter. If it is likely that the client will be involved in litigation, it would be sensible to identify the individuals likely to be involved and request the destruction of all their electronic documents to cease.
If litigation does proceed, it is necessary to consider the searches that can
be carried out and to prepare justification for a decision not to conduct certain
searches. It is also worth trying to agree in advance, with the other parties,
the extent of the searches that each will conduct. Documents received through
disclosure should be reviewed to ensure that they provide the full story, including
access to information about the history of the document that is stored automatically
whenever an electronic document is created, accessed or amended (ie, metadata).
Shatha Ali is a trainee in Norton Rose's Dispute Resolution Department.