eDisclosure / eDiscovery Resources

PD31B Disclosure of Electronic Documents

Practice Direction 31B - Disclosure of Electronic Documents took effect on 1 October 2010

Senior Master Whitaker was originally invited to draft what came to be called the Electronic Documents Questionnaire by the Deputy Head of Civil Justice, Lord Justice Moore-Bick. He was subsequently asked to produce a new Electronic Disclosure Practice Direction. I was a member of a small working party (the others were two judges, two litigation support professionals, a barrister and a solicitor) set up by Master Whitaker to prepare the drafts of these documents.

It is applicable only to multi-track cases. The Electronic Documents Questionnaire is for use when "the parties may find it helpful" OR where "the parties have been unable to reach agreement" OR if the court considers the parties' agreement "inappropriate or insufficient", when the court "will consider" ordering completion of "all or any part" of the Questionnaire.

It therefore applies to a limited range of cases. It is better for the PD (and specifically the Questionnaire) to be used in too few rather than too many cases.

There are some notes below about the main points in the Practice Direction.

My article E-Disclosure and E-Discovery at home and abroad includes some thoughts about the how the PD might be used. An article on the RiskInfoAwareness site called UK e-disclosure risks are calculable and containable draws attention to the fact that:

The risk lies in not being equipped to assess the risk or to make proportionate decisions about the balance between cost and evidential value.

...and makes the point that smaller firms might see opportunities here.

You may also care to read the judgment of Master Whitaker in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), in which the Questionnaire was first used in the case management of electronic disclosure.

HMCS has a Word version of the Questionnaire Form N264

Main Points from the eDisclosure Practice Direction

More prominence than present Part 31PD
Recital of general principles about electronic documents
PD only applies to multi-track cases
Electronic Documents Questionnaire to be used where appropriate
Reminder of preservation obligations
Default specification for exchange

Purpose and Scope

The purpose of this Practice Direction is to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner. [Para 2]

Unless the court orders otherwise, this Practice Direction only applies to proceedings that are (or are likely to be) allocated to the multi-track. [Para 3]

General Principles [Para 6]

Electronic Documents should be managed efficiently to minimise cost

Technology should be used to ensure that document management activities are undertaken efficiently and effectively

Disclosure should be given in a manner which gives effect to the overriding objective

Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure

Disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given

Preservation [Para 7]

As soon as litigation is contemplated, the parties' legal representatives must notify their clients of the need to preserve disclosable documents [including] Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.

Not a new duty…..

…but a reminder that electronic documents may need affirmative action to prevent deletion.

Pre-CMC Discussions [Paras 8 and 9]

The parties and their legal representatives must, before the first case management conference, discuss the use of technology in the management of Electronic Documents and the conduct of proceedings, in particular for the purpose of—

(1) creating lists of documents to be disclosed;
(2) giving disclosure by providing documents and information regarding documents in electronic format; and
(3) presenting documents and other material to the court at the trial.

The parties and their legal representatives must also, before the first case management conference, discuss the disclosure of Electronic Documents. In some cases (for example heavy and complex cases) it may be appropriate to begin discussions before proceedings are commenced. The key points for discussion include:

§ Categories, systems and document retention policies

§ The scope of the search

§ Tools and techniques to reduce the burden and cost

§ The preservation of Electronic Documents

§ Data exchange formats for electronic documents and data

§ The basis of charging for or sharing the cost

The Electronic Documents Questionnaire [Paras 10-19]

In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.

Court to be given a summary of the matters on which the parties agree and disagree

If the parties disagree or if the court finds their agreement “inappropriate or insufficient” the court will consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire.

The Questionnaire must be verified by a statement of truth [Para 11] and the person who signs it must attend CMCs [Para 16]

The Questions

Proposed date range and custodians

Geographical location of servers, desktop PCs, laptops and removable media etc plus document types, databases etc

Proposed keyword searches and other types of automated search

Identification of potential problems with the extent of search and the accessibility of electronic documents

Questions about the disclosure expected from other parties aimed at identifying grounds of potential dispute as early as possible.

Updating the Questionnaire

The Guidance Notes confirm that interim answers may be given

Parties should give such information as they can, and supplement or amend their answers when further information is available [Note 3]

Brief answers may be elaborated on once the questionnaires have been exchanged [Note 4]

the e-Disclosure Information Project

E-Disclosure / E-Discovery resources from Chris Dale

eDisclosure / eDiscovery Resources

PD31B Disclosure of Electronic Documents

Chris Dale | the e-Disclosure Information Project