| Date | 9 November 2005 |
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| Judgment | Practice Direction 31 of the Civil Procedure Rules - Disclosure of Documents, 29 September 2005 |
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| The Issue | The importance of managing and controlling electronic data in the event of future disputes. |
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| Implication |
Recent
changes to the Civil Procedure Rules give guidance on the exchange
of electronic documentation in the process of disclosure in litigation.
The changes may also have implications on the way a party retains
and manages such documentation. |
printAn increasing proportion of the communications between parties to a construction contract is passed by way of electronic documentation, particularly email. It should come as no surprise therefore to learn that the legal framework within which the industry operates is being updated to keep up with this rapidly changing business environment. On 29 September 2005 the Department for Constitutional Affairs published its 40th update to the Civil Procedure Rules (CPR). Part 31 of the CPR deals with the disclosure and inspection of documents by parties involved in litigation. This latest update to the CPR includes a revised Practice Direction which supplements Part 31 and now for the first time provides information on the disclosure of electronic documents. The CPR requires parties to litigation to search for and disclose documents relevant to the case. Standard disclosure requires a party to disclose only; (a) the documents on which he relies; and (b) the documents which; i. adversely affect his own case; ii. adversely affect another party's case; or iii. support another party's case; and (c) the documents which he is required to disclose by a relevant practice direction. The CPR already contained a broad definition of a 'document'. The new Practice Direction confirms that this extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been 'deleted'. It also extends to additional information stored and associated with electronic documents known as metadata. At an early stage in any legal proceedings the parties are expected to discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. The new Practice Direction requires that the parties confirm that a search of electronic data has been made; that they identify the media searched; and identify the extent of the search and any limitations on that search. The scope of the search will vary depending upon the case. It may be necessary to search all of a party's electronic storage systems, but limited searches may be agreed between the parties where a full search would be unnecessary or unreasonable. The new guidance also envisages that parties may need to provide information about storage systems and document retention policies. Such management and retention arrangements are becoming increasingly important in litigation. Indeed, this was highlighted in the case of Douglas v Hello! and has been seen in recent cases in other jurisdictions, particularly Australia and the U.S. Under the new Practice Direction, the parties must state which media has not been searched. The parties must therefore know the scope of their electronic storage systems and must be prepared to justify a decision not to conduct certain searches. So how is this likely to affect the way the construction industry works on a day-to-day basis? Many organisations permit their personnel to communicate directly with other parties. By way of example, a building or civil engineering construction company might permit its site team of project managers, agents, engineers, quantity surveyors, planners and buyers to communicate with members of, say, the clients' team, including the architect and structural engineer. This can be relatively uncontrolled; that is to say the document management systems do not restrict communication through a particular 'chain of command'. Data may be generated and published by a number of individuals and might be held on several desktop PCs, laptop computers, handheld PDAs, mobile phones, local or central servers or other electronic devices. All this data could be relevant and subject to disclosure in litigation. If a party has an established document management and retention system and policy that includes the storage and retention of electronic documentation, the disclosure process is likely to be more manageable and potentially cheaper. Certainly, once litigation becomes a prospect in connection with any project, the company's documentation policies, particularly in regard to electronic documentation, will require to be urgently reviewed. Proper archiving systems are essential to ensure access to relevant files, including those from personnel who work in remote locations or who operate substantially 'on the road'. The system should also recognise individuals who may have left the employ of the company upon completion of a project. A structured retrieval system will need to be put in place that permits clear identification of all personnel who may have generated or received relevant electronic documentation, and records details of all the electronic devices they are using and which may require to be searched in order to satisfy the disclosure obligations that may arise. In conclusion, the disclosure of electronic documents in legal proceedings is to be expected as a matter of course. The parties to potential legal actions need to give thought to the way in which electronic documents are generated, how those documents are stored, where the documents are stored and how long the documents are retained.
CJ-0544
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