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.

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DiscoveryResources has published a list of 20 top e-discovery predictions for the coming year.

These in particular struck me:

5. Software as a Service will start gaining inroads due to lack of credit and a reluctance to make capital purchases.

i.e. hosted discovery services. I’ve been using these for about 5 years now and the people I am currently with, Trilantic, have proved good, responsive and, which the clients especially like, inexpensive. The days are gone when these people had you over a barrel and could charge pretty much what they liked — now there is more flexibility and the hosting charges themselves are so low that they are pretty much a no-brainer, even for cases that are not particularly document heavy.

12. e-Discovery providers will discover diversity and alternative billing.

See above.

13. There will be a dramatic increase in international e-discovery (e-disclosure) requirements due to the financial crisis, arbitration, class actions and competition law.

I think this is going to be linked generally to a more intrusive (invasive?) regime of regulation that will be ushered in by the Obama Administration and by the exigencies of the post-crash landscape.

19. Insurance providers will get involved earlier and more visibly in the e-discovery process.

Definitely so. At least on the bigger cases, though it may be more difficult to justify internally on disputes that don’t appear so large or complex. One problem here is that it is not always immediately obvious that a case will become that difficult/costly until you are quite a way into it, and the temptation is (in the UK at least) to defer the decision to go electronic for a while. Of course, the further you go in a case without going electronic the more difficult it is finally to take the decision, and the more benefit is lost as a result of that delay. I push for early adoption where I even suspect it would help.

20. Law firms will be sanctioned for not having their own e-discovery houses in order.

I am not sure whether ’sanctions’ here means some actual costs penalty against them, but if so I think we may be a little way off that in the UK. However, I’ve recently seen, for example, an arbitration tribunal suggest quite positively that a party complaining of being swamped by the other side’s documents might do well to adopt (as it had not done until then) an electronic system to deal with the papers, and I think we will see an increasing number of such suggestions until, in a few years time, it really is the norm and thus sanctionable if not adopted.

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In the recent case of Expandable Ltd. v. Rubin, the Court of Appeal has held that mere mention of a letter does not automatically waive legal professional privilege.

The judgment, given by Rix LJ, went to two points. First, had the letter been “mentioned” for the purposes of CPR 31.14; second, if it was so mentioned, did that amount to a waiver of privilege.

Their Lordships found that the letter was ‘mentioned’, noting that the test was not intended to be an onerous one, the word ‘mention’ being as general as could be (see paras 18ff of the judgment).

However, the Court was not satisfied that the mere mention of a document provided for the automatic and absolute waiver of its privilege; this would be a significant departure from previous jurisprudence with no good explanation. Privilege is a fundamental right that cannot be overridden by general words, and Rix LJ quotes Lord Justice Hoffman (in R v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115) on the point:

>”Fundamental rights cannot be overridden by general or ambiguous words…In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

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