Disclosure Obligations And The E-ternal Debate

There comes a time in every piece of litigation that proceeds to trial, that the dreaded process of disclosure must be approached. In the past, this has always involved trawling the paper files for relevant documents. However, it is now becoming increasingly common to search not only paper documents but electronic files. Statistics have shown that currently well over 90% of all business communication is in electronic format (for example e-mail). It has been estimated that some 70% of this electronic communication is never printed. This means that, searching for paper documents to comply with disclosure obligations is only scraping the tip of the iceberg. Potentially thousands or hundreds of thousands of documents will be lurking on computers, PDA’s or even as text messages in mobile phones. How thorough a search should therefore be made in order to comply with the obligation to make a "reasonable search" for documents?

The answer to this question will depend on factors such as the number of documents involved; where such documents may be stored; the ease and cost of retrieval of electronic documents; the cost of the proceedings as a whole; and the significance of the documents for the case.

The most obvious form of electronic communication is e-mail. In many cases searches will be made under e-mail folders and the relevant documents printed out and disclosed. However, what about emails that have been deleted? While they will not necessarily appear on the desktop of the computer, they will undoubtedly be stored on a back up tape somewhere. Would a "reasonable" search extend to trawling the back up tapes for an e-mail that is believed to have existed but which has been deleted? If you suspect that the opponents in the litigation have a copy of an e-mail which they received, yet you do not have a record of the sent e-mail because it has been deleted, will the other side question the thoroughness of your search if you do not disclose an e-mail which they know to exist?

Again, whether these searches should be made comes down to the question of what is reasonable. For example, a hard drive of 15GB can contain approximately 1,250,000 pages of information if it were to be printed out in its entirety. A back-up tape can contain around 3,500,000 of information printed out. In a very small value case, it would probably not be considered proportionate to search an entire back-up tape or hard drive for one single document, particularly if that document is not deemed crucial. However, in larger cases it may be proportionate to make such a search, particularly if software is available to allow key word searches. If a case hinges on the question of whether a particular e-mail or document was created or sent before a specific time and date, it may be necessary to undertake such a detailed search in order to ascertain exactly when the document was created. In an age when it is possible to back-date documents or delay sending emails, sometimes the only way to truly tell whether a document was in existence before a particular time is to examine what is known as the metadata, which involves costly expert assistance.

All things being equal, it usually comes down to a matter of costs. If one party is particularly insistent that a hard drive or back-up tape search be undertaken, but the other party insists that this would be too costly or disproportionate, the court always has the discretion to make an order that the search be carried out; with the searching party being required to bear the costs of such a search. Faced with such an order, the party requiring the search will be forced to analyse carefully whether it is strictly necessary for their case.

There has been very little case law to date on this matter in the English courts. However, it would not be surprising if this topic were to become the subject of close scrutiny by the courts over the next few years, as the courts are asked to rule on the reasonableness or otherwise of such searches.