The senior judiciary are aware of the fact that e-disclosure provisions are being ignored. Consequently a working party, led by Senior Master Whitaker was set up in 2009 to review matters. The aim was to draw up a formal questionnaire which would require parties in appropriate cases to exchange answers to the questionnaire dealing with their electronically stored information (ESI). It was planned that the draft should be brought into effect in April 2010 by a change in the CPR - a new CPR dispensing with standard disclosure and establishing a new CPR r 31.5A requiring the court to consider the most appropriate process for disclosure at the first case management conference.
But it did not happen quite like that. Following a meeting in February 2010 the Civil Procedure Rule Committee were not prepared to adopt the new CPR r31.5A. I understand from an article by barrister Clive Freedman QC "One of the points which caused difficulty has been deciding which cases are cases in which the parties should be obliged to exchange answers to the questionnaire. On the one hand, it is desirable that there should be an obligation to exchange answers in all cases in which this would be likely to save time and costs. On the other hand, there should not be an obligation to exchange answers in relatively straightforward cases where answers to a detailed questionnaire are not needed. The difficulty lies in finding words which appropriately distinguish between these two situations."
When eventually the Practice Direction is brought into force not only will the parties have to sign a Statement of Truth in respect of the case but the E-Disclosure Questionnaire will have to be signed by a solicitor, client representative or IT consultant as being true and complete and the person signing the questionnaire shall be required to attend each Case Management Conference at which electronic disclosure issues are likely to be considered. (For further thoughts on this topic see my article Chicken and Egg Disclosure )
According to Clive Freedman QC "The questionnaire is available for use by parties in cases in which it would be of assistance and they should certainly consider using it in appropriate cases without awaiting the new Practice Direction - some have already done so." Senior Master Whitaker directed the defendant to answer the questionnaire in Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation) [2010] EWHC B41 (QB) and he annexed a copy to his judgment.
But does this draft questionnaire really work? A questionnaire should focus the minds of the parties so that they identify the scope of the disclosure of ESI required in the action. They should then discuss and agree with each other the extent of a "reasonable search" under CPR rule 31.7. Such a discussion should also agree the format in which disclosure should be given to the other party. Such a process is also meant to give the court sufficient information about the architecture of the parties' electronic storage systems and the identity of the electronic media that may contain relevant information in the event that an application has to be made to the court on disclosure.
In practice the adversarial system tends to work against this and the draft questionnaire does not have a coherent contextural framework around it. The lack of knowledge amongst practitioners and the judiciary means that sensible points can be rejects as 'fishing' or as being 'irrelevant' and alternatively that unreasonable requests can be nodded through by a master or judge who does not understand the true implications of his order.
Since almost every case today will involve some ESI it is sensible for the claimant to take a pro-active role with respect to it and to be able to explain not only why certain ESI is needed but how it is likely to fit into the whole context of the litigation and the day to day activities of the parties.
But ESI needs to be considered not just after pleadings but at the very outset of the litigation. In my view it is always essential to consider at the very start of evey case what ESI the defendants will have in their possession - and how to get hold of it. A first step is to consider who are likely to be the key defence witnesses. Then, well before the litigation gets going, it is sensible to send the prospective defendants a Spoilation Notice, where you put them on notice of the forthcoming litigation and require them to confirm that none of the ESI in the possession, power, custody or control of the key defence witnesses will be destroyed pending the formal commencement of the action and applications for disclosure.
Spoilation, which is an American concept, has developed a substantial caselaw around it relating to the inference which can be drawn from the destruction of a document or a thing - namely that had it not been destroyed it would be evidence which adversely affect the case being put forward by the person who destroyed the document or thing. Three US states have 'spoilation' of evidence as a specific tort and there is now good US caselaw on this topic Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd. et al., 2009 WL 998402 (ED Mich. 4/14/09) (failure to preserve back-up tapes post trigger event causes court to hold a hearing to determine if sanctions should be issued) (sanction decision reserved pending results of hearing.). In the UK in Earles v Barclays Bank [2009] EWHC 2500 (Mercantile) at [27]-[30] the Judge stated that before proceedings are commenced there is a duty not to destroy documents deliberately, but no duty to preserve documents, whereas after the proceedings have been commenced documents must be preserved. If they are not preserved, adverse inferences may be drawn. Failure to preserve documents before commencement of proceedings may result in costs sanctions.
For further information about electronic disclosure in England and Wales, see www.edisclosure.uk.com.