DELEGATES at the Bar Conference should devote time to the subject of electronic disclosure, for it constitutes a tidal wave that is soon to engulf the world of litigation.

The problem can be simply stated. Most documents today are created and stored electronically. When a dispute arises and parties disclose relevant documents to one another, this is no longer an exchange of papers that have been effortlessly withdrawn from filing cabinets. Instead, litigants and lawyers may find themselves in seemingly boundless trawls through innumerable systems and millions of files in search of explicit and hidden documents (including e-mails). This task is particularly daunting for most big organisations, whose electronic filing systems are often vast and chaotic. It is no wonder that two City institutions are said recently to have settled disputes prematurely and expensively in anticipation of not being able to cope with the demands e-disclosure.

Uncertainties abound. How much electronic material must be disclosed? Should this extend to metadata (information about documents, such as dates of amendment)? Who should pay for the process of recovering data from archives and back-ups? Above all, how can the cost of e-disclosure be rendered proportionate to the value of a claim? The most authoritative answers to these and other questions, under English law, have just appeared in a report of a working party of the Commercial Court Users ’ Committee, chaired by Mr Justice Cresswell (www.commercialcourt.gov.uk or www.scl.org). It concludes, rather optimistically, that English law is sufficiently flexible to cope with the demands of e-disclosure, largely because of the reasonableness and proportionality tests governing the search for documents under the Civil Procedure Rules.

Nonetheless, it recommends various modest amendments to these rules and to the Commercial Court Guide. That report should be read alongside the second version of the paper on e-disclosure published by the Commercial Litigators’ Forum (www.commerciallitigatorsforum.com) and the Litigation Support Technology Group’s third draft practice direction for the use of IT in civil proceedings (www.scl.org). From the United States, important additional sources of guidance are the Sedona Principles (www.thesedonaconference.com) and the landmark decisions by Judge Shira Scheindlin in the Zubulake cases (www.krollontrack.co.uk/legalresources/
zubulake.asp).

Although all of these contributions are invaluable, they leave a nagging doubt. They tend to place undue emphasis on where information is physically stored, on what electronic medium it is stored, in what format it is stored and for what purpose it is stored. The result is that whether or not a document might, in law, be disclosable could turn on some rather arbitrary criteria (for example, where a document is stored and in what format) rather than on sound principles of reasonableness or relevance. In any event, clients need help here — not just conventional advice when a dispute arises but a legal risk-management service in readiness for litigation, so that when trouble looms the state of their document retention and filing systems enhances rather than hinders their negotiating position. As ever, clients will surely prefer a fence at the top of the cliff to an ambulance at the bottom.

The author lectures and consults internationally. He is IT adviser to the Lord Chief Justice and can be contacted through www.susskind.com

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