In his final report on civil litigation costs in England and Wales, Lord Justice Jackson identified e-disclosure as a significant element of litigation costs and advocated clearer, more efficient and cost effective ways of managing Electronically Stored Information (ESI). The Jackson report endorsed the draft Practice Direction on e-disclosure produced by a working party chaired by Senior Master Whitaker. The draft PD is currently being considered by a sub-committee of the Civil Procedure Rules Committee (CPRC) and in Gavin Goodale v The Ministry of Justice Senior Master Whitaker directed that the questionnaire that is attached to the draft PD should be used. Although the draft PD and questionnaire have not yet been formally approved by the CPRC, the decision indicates that parties will in future be encouraged to use the questionnaire as best practice.

Balanced approached to e-disclosure

In large-scale litigation, large amounts of ESI are often stored in various formats and in various systems and devices. Parties either carry out insufficient searches, or comply with their disclosure obligations but at great expense. Incorrect disclosure can lead to costly corrections, as the decision in Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others showed when the defendants were ordered to redo their ESI search at an additional cost of approximately £2 million.

In the case before Senior Master Whitaker the defendants had largely agreed the disclosure of documents in paper form, but argued that it would be disproportionate to carry out a search of ESI because of the quantity of documents that they would have to search. Senior Master Whitaker dismissed these arguments and ordered disclosure of ESI, stating that there were important disclosable documents held in electronic form.

Senior Master Whitaker did, however, note that a review of documents should not be unnecessarily wide. What is required is a considered and staged approach that makes e-disclosure the least expensive and most proportionate exercise possible.

The draft e-disclosure questionnaire

In order to help with the e-disclosure process, Senior Master Whitaker directed the defendants to answer a copy of the questionnaire that is attached to the draft PD. This is a notable development as the questionnaire has yet to be approved by the CPRC for publication.

Senior Master Whitaker attached the questionnaire to the Schedule of his judgment and is the first to use it as a tool for case management. This indicates that parties will be encouraged to use the draft questionnaire as best practice.

The other important points on e-disclosure made in this case are as follows:

  • Parties should co-operate as much as possible.
  • Defendants should provide information about the location of ESI, its custodians and the systems or media on which it can be found.
  • Parties should discuss any proposed search methodology.
  • When discussing search methodology, parties should consider a sensible date range and start with the most important people at the top of the pyramid.
  • Searches should start with fairly simple search terms, the results of which should be refined using narrower search terms to filter documents down to a reasonable number.
  • Software and new technology may be required to filter and de-duplicate material to a more manageable size, thereby reducing the amount of human review (the most expensive part of the exercise).


Further reading: Gavin Goodale & Others v The Ministry of Justice & Others [2009] EWHC B41 (QB)

Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others [2008] EWHC 2522 (Ch)

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 19/03/2010.