Ian Pease is a partner at Davies Arnold Cooper, specialising in construction and engineering law.

In this second article on edocuments in litigation and arbitration, Ian Pease reviews how e-documents are prioritised by the UK Courts.

INFORMATION OVERLOAD

Anyone returning from holiday knows the feeling; you turn on your computer and have to trawl through a couple of hundred e-mails, filing and deleting, before you get any substantive work done. This sorting and deciding what is relevant also applies if there is a contractual dispute and disclosure is necessary (being the process of listing what documents are in your organisation’s possession and which may have to be made available to the other party). The first article covered the new techniques that are helping sort data and this paper explains the current attitude of the UK Courts.

COSTING THE EARTH

Why disputes are so costly to settle, and what can be done about it are key questions in the ongoing Civil Justice Review of Costs. A lot revolves around considering the documents themselves, recognising that we email ‘everyone’ and ecommunications are backed up in various locations.

THE NEED TO COOPERATE

Litigation in the UK used to be seen as adversarial and overall it still is, but there are parts of the process that the Courts are increasingly stressing should be cooperative – one is the dealing with e-documents. A recent case‘Digicel (St Lucia) Ltd and other companies v Cable and Wireless plc and other companies [2008] EWHC 2522 (Ch)’ highlights the fact that this has not got through to some in the legal profession. The judge in this case (Morgan J) made the point as follows:
47. This case provides an opportunity for the Court to emphasise something mentioned in Part 31 Practice Direction [dealing with disclosure of documents] which the parties in the present case disregarded. Paragraph 2A.2 of the Practice Direction states that the parties should at an early stage in the litigation discuss issues that may arise regarding searches for electronic documents. Paragraph 2A.5 of the PD states that where key word searches are used they should be agreed as far as possible between the parties. Neither side paid attention to this advice. In this application the focus is upon the steps taken by the Defendants.

They did not discuss the issues that might arise regarding searches for electronic documents and they used key word searches which they had not agreed in advance or attempted to agree in advance with the Claimants. The result is that the unilateral decisions made by the Defendants’ solicitors are now under challenge and need to be scrutinised by the Court. If the Court takes the view that the Defendants’ solicitors’ key word searches were inadequate when they were first carried out and that a wider search should have been carried out, the Defendants’ solicitors’ unilateral action has exposed the Defendants to the risk that the Court may require the exercise of searching to be done a second time, with the overall cost of two searches being significantly higher than the cost of a wider search carried out on the first occasion.

He went on to conclude that the Defendant’s solicitors in the case had not carried out a reasonable search in the first instance and that the parties’ solicitors should meet to discuss how restoration of the Defendant’s back-up tapes could best be done and “Following such a meeting, the Defendants should embark so far as reasonably practicable upon restoration of the back-up tapes”.

Additionally, further key word searches were instructed to be done by the Defendants, again probably at substantial further cost.

THE LESSON FROM DIGICEL

A Court will not look kindly upon parties that take unilateral action when it comes to e-disclosure. In the UK, parties will soon have to complete an ‘e-Disclosure Technology Questionnaire’, which will be discussed at the first Case Management Conference of each particular dispute. The questionnaire has just gone through its final consultation and in commenting on it, I suggested that consultation and cooperation should be taken to another level. At the moment, what typically happens is that each party prepares its own database, thereby multiplying the costs of the edisclosure. What if all parties shared one database? Each party’s ‘work product’ (its comments upon the document for example) can be kept secret but the exchange ofdocuments upon disclosure would be simple and the overall costs likely to be significantly reduced.

WHAT NEW TECHNOLOGY PRODUCES IT ALSO SOLVES

There can be no doubt that many of the problems we now face in terms of comprehending the overall merits of our clients’ cases are added to by the ‘tyranny of the email’ (and other electronic documents); we are weighed down under that burden. But technology is also the ‘wind in our sail” and those with the intelligence to see the direction of that wind can also benefit from the new databases and searching tools that are currently coming on line, and in so doing give a better and more cost effective service to their clients.

Ian Pease is a partner at Davies Arnold Cooper, specialising in construction and engineering law and can be contacted at ipease@dac.co.uk