Latest Legal News - Disclosure of Electronic Documents in Civil Claims (December 2010)

The new Practice Direction 31B under the Civil Procedure Rules (the rules under which the county courts and High Court operate) on Disclosure of Electronic Documents applies to all claims started on or after 1^st October 2010. In summary, it regulates how parties are to deal with making copies of all potentially relevant electronic documents available to each other.

Long gone are the days when a party to a claim could fulfil his disclosure obligations by confirming to the court that he (or she) had searched his (or her) office for hard copy documents. Even so, prior to the new protocol coming into force the manner in which parties have conducted searches for electronic documents has often been haphazard and something of an afterthought.

Since the beginning of October, prior to the first Case Management Conference in any claim (shortly after the completion of exchange of statements of case) the parties are required to discuss and attempt to agree the procedures that will be adopted in order to allow them to provide each other with comprehensive lists of electronic documents and such copies as each may require, whether electronically or otherwise.

The parties will routinely be expected to agree the scope of searches that are to be conducted and the methodology to be employed. The protocol makes it clear that simple keyword searching is in many cases not likely to be adequate and in the case of locations of particularly relevant documents the court will expect the adoption of a "fine-tooth comb" approach.

If the parties cannot agree a procedural framework for electronic disclosure prior to the first Case Management Conference, the court will usually expect each party to complete an Electronic Documents Questionnaire, a precedent for which is attached to the new Practice Direction. If they fail to do so it is likely that the court will send them away and give them 14 days to comply. More often than not this will result in a further Case Management Conference becoming necessary, at further expense to the parties.

The times are changing and it will no longer suffice for litigants to issue claims without giving serious thought to the scope and complexity of the disclosure exercise, which is becoming ever more complicated and accordingly, costly to undertake.

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