ESI disclosure in practice

Public bodies, private businesses and even some individuals now create, exchange and store data and communicate with each other almost entirely by electronic means. The volume of such Electronically Stored Information (ESI), even in small organisations, is immense because of the sheer ease of creation, transfer and storage.

The problem with ESI in litigation

The problem with this in litigation is that it can be difficult if not impossible for a party to gauge the scope of a “reasonable search” for ESI under CPR Rule 31.7 and PD31(2), both in relation to its own disclosure and that of its opponents.

In Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) Senior Master Whitaker, Chairman of the working party which drafted the new practice direction on ESI, has given timely and highly practical advice on how the parties and the court are to determine the scope of the search for ESI, how to make it proportionate and how to do it correctly first time, without the court having to order it to be done again at great expense.

Context and issues

The case concerns a group-action in which Opiate Dependent Prisoners seek redress from the government over the latter’s policy of ‘one size fits all’ detoxification procedures. Many prisoners complain of suffering and one is alleged to have died as a result of the policy.

The issue here was whether the Ministry of Justice, as defendants, should have to make any disclosure of ESI. They had refused to do so, despite having agreed to disclose their paper documents. This in itself made the case unusual, since the customary debate is over the extent of what is reasonable in the search, not whether the search should be conducted at all. The Master found that standard disclosure should be ordered (as will happen in the majority of cases) and hence that the defendants must conduct a reasonable search for all documents, including those in ESI.

Dealing with the practicalities

Here is the meat of the judgment. Since the defendants had provided almost no information about their ESI, no one could say with any certainty what was available, where it was, nor how much it would cost to search it, let alone how relevant any of it was. The defendants proposed that the parties and the court consider the paper disclosure and then, at some later stage, decide what more might be needed by way of ESI disclosure.

The Court rejected this. It emphasised that the extent of the search was not simply to be open-ended and that it is for the Court to control the exercise to make it proportionate to the issues at stake.

At the moment we are just staring into open space as to what the volume of the documents produced by a search is going to be. I suspect that in the long run this crude search will not throw up more than a few hundred thousand documents. (Para 27)

1. First, start with the key people ‘at the top of the pyramid’ and use a staged, incremental approach. Often, that may suffice since the key documents are likely to be in the ESI owned by these most important players.
2. Second, consider ‘key word’ searches (to be agreed) against some or all of those key players’ ESI stores. This is a relatively crude method, but it will give some indication of what might be uncovered and how much there is of it.
3. Third, with a rough idea from the keyword searches of the volumes involved, use specialists and specialist software to fine-tune the results and de-duplicate.
4. Then, fourth, you move to reviewing with real people.

The ESI Questionnaire

Importantly, the judgment annexes to it the new proposed ESI Questionnaire. This is now a publicly available document (it is unlikely to become a Practice Direction until later this year) and hence it is likely that parties will be encouraged to adopt it as best practice.

The Questionnaire is not intended as a formulaic, tick-box list adding another layer of costly bureaucracy onto the litigation process. Rather, it is a helpful guide to issues which might arise and of which only some may be relevant to a given case. Indeed, the Court’s first step will be to decide whether the case warrants using the Questionnaire at all, and if it does it may decide on a modified version of it. This should then make everyone focus, at an early stage, on what is actually helpful for the case in question. The judgment itself is an excellent example of how active case management by an involved judge can adapt the Questionnaire to the circumstances.

In summary

This is a short, succinct judgment which explains not just the steps involved but stresses the need for all parties to focus on why the ESI disclosure is necessary. The goal is not to add burdens (and costs) to cases which do not merit them, nor to force disclosure for its own sake.

But equally the judgment shows that the courts will not accept that there should be no or limited disclosure merely on the grounds that it will be expensive or inconvenient for the party concerned to provide it.

While the less technically and less technologically minded judges may have struggled with some aspects of ESI disclosure, this judgment, backed up the ESI Questionnaire, provides a clear and understandable roadmap for them, as well as for lawyers, executives and claims managers. Welcome to the future of disclosure.

As I’ve had a number of requests for a copy of it, here is the ESI Questionnaire in PDF format, taken straight from the appendix to the judgment.