Electronic Disclosure ("e-disclosure") is the process by which the parties exchange relevant electronically stored documents (such as emails, text files and voicemails) during litigation. With the expanding integration of technology into personal and business lives alike, e-disclosure has become a central part of meeting disclosure obligations.

Unfortunately, e-disclosure can be an unwieldy and difficult process to manage and mistakes can be made due to the sheer volume of data needing to be analysed. Further, it is not uncommon for parties to overlook e-disclosure until the last minute, which is strongly discouraged.

Recent Cases

Wyche v Careforce Group PLC [2013] EWHC 3282 (Comm)

An application was made for relief from sanctions in relation to non-compliance with disclosure obligations under an Unless Order. Inadvertent human errors were made, including using incorrect syntax in keyword searches and 65 documents incorrectly being categorised as privileged. The Court held that the fact that the mistakes were not deliberate was a relevant consideration, as were the steps and speed used to correct the errors, and the fact that there was no effect on the trial date. In this instance the party was entitled to relief from sanctions.

Re Atrium Training Services Ltd [2013] EWHC 2882 (Ch)

This case established that omitting disclosure of categories of documents is not in itself sufficient to establish breach of a party's disclosure obligations; it must be established that the actual search for documents was not reasonable. The Court also confirmed that both proportionality and good faith were important factors in determining breach.

Thevarajah v Riordan [2013] EWHC 3179 (Ch)

After failing to meet the general disclosure obligations required under an Unless Order, the party's application for relief from sanctions was initially refused. However, upon a second application the Judge granted relief, stating that in relation to CPR 3.9 (relief from sanctions) and following Wyche v Careforce, "the court should not apply the new rules unthinkingly and should make allowance for human error ... the amended Rule should not be permitted to encourage parties to exploit minor errors for tactical gain".

Conclusion

While the Court does not look favourably on delay and non-compliance with disclosure obligations, recent cases indicate that the Court is prepared to take a pragmatic approach, where appropriate, for genuine inadvertent non-compliance.

E-Disclosure: Top 10 Tips

1. Be organised: Implement an internal filing system for all electronic records.

2. Don't destroy: Ensure a document retention policy is in place and all employees are informed.

3. Discretion: Any document created could later be viewed as part of legal proceedings, so think twice before recording inflammatory remarks.

4. Circulation: When litigation is contemplated, consider whether it is necessary to create a new document or forward it on. Where possible, include your solicitors in communications.

5. Jurisdiction: Disclosure obligations in England & Wales differ to the rules applicable abroad.

6. Cross-border: Consider the implications in moving data between jurisdictions.

7. No "cherry-picking": You may need to disclose documents that are damaging to your case. These cannot be ignored or destroyed.

8. Cost control: Don't cut corners - choose the most appropriate option for document management rather than the cheapest.

9. Timing: Factor in cushioning for deadlines; last minute curveballs can throw your timetable.

10. Record your steps: Keep clear records during the e-disclosure process to ensure that you can retrace and justify your actions at a later date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.