eDisclosure Cases

There have been enough recent cases about electronic disclosure for the subject to matter in risk management terms.

The cases listed below are not all about electronic disclosure - disclosure without the "e" and relevant case management judgments may appear here as well.

The hyperlinks below take you to my own summary of the case and the reasons why it is important. These are vary in length, and are sometimes a copy of an article which I wrote at the time.

Hyperlinks from there take you to a copy of the judgment itself, usually on BAILII.

Between them, the cases below cover the following:

electronic documents exist and must be dealt with
the duty of candour in respect of disclosure
proportionality, cooperation and the overriding objective
the Practice Directions to Part 31 CPR are not to be ignored
disclosure deficiencies are punishable by adverse costs orders
disclosure may be staged and iterative
judges have a duty of active management
judicial discretion is very wide and not likely to be overturned
there is a reputational downside to getting it wrong
eDisclosure is relevant in e.g. libel and matrimonial cases
an order for enhanced disclosure requires evidence of its scope
destruction of data in breach of an order leads to striking out

Nichia Corp v Argos Ltd
[2007] EWCA Civ 741 (19 July 2007)

The case law source for the proposition that "no stone unturned" approach is not the right the right approach to discovery.

Digicel (St Lucia) v Cable & Wireless
[2008] EWHC 2522 (Ch) (23 October 2008)

An exemplary examination of the duties to discuss electronic sources of documents under the then Practice Direction to Part 31 (now expanded into PD31B).

Earles v Barclays Bank Plc
[2009] EWHC 2500 (Mercantile) (08 October 2009)

A successful defendant was deprived of a substantial part of its costs for disclosure failures. Parties who can expect to litigate must be ready to litigate.

Goodale v The Ministry of Justice
[2009] EWHC B41 (QB) (05 November 2009)

This case is important as a model for pre-emptive case management by a judge, Senior Master Whitaker, who made the parties focus on what really mattered and reminded them that technology exists to reduce the review volumes.

Vector Investments v Williams
[2009] EWHC 3601 (TCC) Ramsey J (November 2009)

If disclosure failures cause the other side unnecessary expense, you must expect to have to compensate them for it - £20,000 in this case.

Shoesmith, R (on the application of) v OFSTED & Ors
[2009] EWHC B35 (Admin) (10 November 2009)

You don't need technology errors or an inability to understand the rules to have an expensive and embarrassing disclosure failure. Mere oversight of the obvious will do.

Al-Sweady & Ors, R (on the application of) v Secretary of State for Defence
[2009] EWHC 2387 (Admin) (02 October 2009)

Take your pick from the messages here: £1m in indemnity costs for disclosure failures; having to withdraw the defence because of them; or being branded as an individual whose evidence must be treated with the greatest caution.

Fiddes v Channel 4
[2010] EWCA Civ 730 (29 June 2010)

The judge declined to make an order for specific disclosure. The Court of Appeal declined to overturn that exercise of discretion, though apparently not much impressed by it.

Tchenguiz v Imerman
[2010] ECA Civ 908 (29 July 2010)

It is not just commercial cases which throw up disclosure and eDisclosure points. This matrimonial case threw up all sorts of interesting things.

Rybak & Ors v Langbar International Ltd
[2010] EWHC 2015 (Ch) (09 July 2010)

The use of file erasing software after order for delivery-up of a computer will, fairly obviously, lead to severe penalties, perhaps including (as in this case) striking out.

Berezovsky v Abramovich
[2010] EWHC 2010 (Comm) (06 August 2010)

The court refused to make an order for Peruvian Guano-type disclosure because it had been given to evidence to warrant such an order.

Omni Laboratories Inc v Eden Energy Ltd
[2011] EWHC 2169 (TCC) (29 July 2011)

Late eDisclosure application tacked on to pre-trial review at a cost of £47,000.

Shah & Anor v HSBC Private Bank (UK) Ltd
[2011] EWCA Civ 1154 (13 October 2011)

The basic definitions in Part 31 CPR are generally invoked to widen or narrow general disclosure obligations. In this case, the narrow Rule 31.6 definition of a disclosable document barred access to particular documents with the claimant wanted to see.

West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc
[2012] EWHC 396 (TCC) (27 February 2012)

Multiple defects in giving electronic disclosure had caused significant expense to the other side. The court was not hampered by an existing costs order and awarded indemnity costs, with £135,000 payable on account.

Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor
[2012] EWCA Civ 265 (09 March 2012)

Statutes, in this case those to do with the construction of contracts, must, if possible, be construed in a manner which accommodates accepted contemporary business practice. It should not matter if a sequence of emails manifests itself in a single document as a thread or string of emails or in a series of individual documents.

the e-Disclosure Information Project

E-Disclosure / E-Discovery resources from Chris Dale

eDisclosure Cases

Chris Dale | the e-Disclosure Information Project