• PD 51U
• E-Disclosure Timeline
• PD 31B – Disclosure of Electronic Documents
The purpose of disclosure is to make available evidence which either supports or undermines a party’s case. The following notes explain what disclosure involves and requires, i.e. the duties imposed on the parties and their legal advisors under the CPR. The Disclosure Pilot in the Business and Property Courts of England and Wales commenced on 1 January 2019, is governed by the provisions of PD 51U. It is ‘intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality.’ UTB v Sheffield United Ltd  EWHC 914 (Ch)  (per Sir Geoffrey Vos, Chancellor of the High Court). The key stages in disclosure are explained in the notes below about PDU51.
• The Disclosure Review Document (‘DRD’)
• Completing Section 1A of the DRD
• Specifying Disclosure Models in Section 1A of the DRD
• Updating the Issues for Disclosure
• Disclosure process methodology
PDU51 paragraph 1.10 states,
‘Save that references in Section II to an Electronic Documents Questionnaire should be treated as references to the Disclosure Review Document, nothing in this Practice Direction is intended to change the application or working of those provisions of CPR Part 31 that are set out in Section II and the related provisions of Practice Directions 31A and 31B, and CPR Part 31 as a whole should still be used to interpret those provisions’.
PDU 51 states
‘2.1 Disclosure is important in achieving the fair resolution of civil proceedings. It involves identifying and making available documents that are relevant to the issues in the proceedings.
2.2 For the purpose of disclosure, the term “document” includes any record of any description containing information. The term is further defined below.
2.3 The court expects the parties (and their representatives) to cooperate with each other and to assist the court so that the scope of disclosure, if any, that is required in proceedings can be agreed or determined by the court in the most efficient way possible.
2.4 The court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate (as defined in paragraph 6.4) in order fairly to resolve those issues, and specifically the Issues for Disclosure (as defined in Appendix 1).
2.5 A “document” may take any form including but not limited to paper or electronic; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings.
2.6 In addition to information that is readily accessible from computer systems and other electronic devices and media, the term “document” extends to information that is stored on servers and back-up systems and electronic information that has been ‘deleted’. It also extends to metadata, and other embedded data which is not typically visible on screen or a print out.
2.7 Disclosure extends to “adverse” documents. A document is “adverse” if it or any information it contains contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute, or supports the contention or version of events of an opposing party on an issue in dispute.
2.8 “Known adverse documents” are documents (other than privileged documents) that a party is actually aware (without undertaking any further search for documents than it has already undertaken or caused to be undertaken) both
(a) are or were previously within its control and (b) are adverse.
2.9 For this purpose a company or organisation is “aware” if any person with accountability or responsibility within the company or organisation for the events or the circumstances which are the subject of the case, or for the conduct of the proceedings, is aware. For this purpose it is also necessary to take reasonable steps to check the position with any person who has had such accountability or responsibility but who has since left the company or organisation.’
Please note that:
1. Unless otherwise agreed between the parties or ordered by the court, the timetable for completion of the DRD is set out in paragraphs 7 and 10 of PD 51 U.
2. Whilst the explanatory notes to each section of the DRD set out in Appendix 2 to PD 51 U are for guidance, parties are expected to follow the guidance where applicable unless there are good reasons not to do so.
3. The DRD comprises:
3.1 Section 1A: Issues for Disclosure and proposed Disclosure Models;
3.2 Section 1B Request-led Research-based Disclosure (Model C); and
3.3 Section 2 Questionnaire;
4. The DRD replaces the optional Electronic Documents Questionnaire (CPR, r.31.22, \and PD 31B paragraphs 10-13, and schedule)
Step 1 – Request for Extended Disclosure
Request for Extended Disclosure to include one or more of Models B, C, D or E on one or more issues in the case.
Step 2 – List of Issues for Disclosure
Where one or more of the parties has indicated it is likely to request Extended Disclosure, the claimant must prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). (Para 7.2). Compliance is required within 42 days of the closure of statements of case
Step 3 – Inclusion of a particular issue
In the event that a particular Issue for Disclosure has not been included in the List of Issues for Disclosure, or is described in a manner that is unacceptable to the defendant, using section 1A of the Disclosure Review Document the defendant should provide the claimant with its proposed wording or alternative wording for inclusion in the draft List of Issues for Disclosure. (Para 7.5). Compliance is required as soon as practicable but in any event no later than 14 days after service of the draft List of Issues for Disclosure.
Step 4 – Agreement of the List of issues
The parties must discuss and seek to agree the draft List of Issues for Disclosure. They should consider whether any draft Issue for Disclosure can be removed. For each Issue for Disclosure that is maintained, the parties should indicate at this point, using Section 1A of the Disclosure Review Document which Model of Extended Disclosure is sought for each party. Where Model C Disclosure is contemplated the parties should discuss the requests that might apply for the purpose of that disclosure. (Para 7.6). Compliance is required in advance of the first case management conference.
Step 5 – Section 1B
Any party proposing Model C Disclosure must complete and then provide Section 1B of the Disclosure Review Document to the other parties. (Para 10.5). Compliance is required by no later than 28 days after the defendant has responded in accordance with paragraph 7.5 of the PD to the claimant’s draft List of Issues for Disclosure.
Step 6 – Response
Any party provided with a completed Section 1B in this way must respond by completing the ‘response’ column either agreeing to the request or giving concise reasons for not agreeing to the request. (10.5). Compliance is required within 14 days of receiving requests in Section 1B of the Disclosure Review Document.
Step 7 – Section 2
Having agreed the List of Issues for Disclosure and exchanged proposals on Model(s) for Extended Disclosure, the parties should prepare and exchange drafts of Section 2 of the Disclosure Review Document (including costs estimates of different proposals, and where possible estimates of likely amount of documents involved). (Para 10.6). Compliance is required as soon as reasonably practicable and in any event not later than 14 days before the case management conference.
Step 8 – Scope
The parties must seek to resolve any disputes over the scope of any Extended Disclosure sought. (Para 10.7). Compliance is required in advance of the first case management conference.
Step 9 – Joint Disclosure Review Document
A finalised single joint Disclosure Review Document should be filed by the claimant. Related correspondence and earlier drafts should not ordinarily be filed. (Para 10.8). Compliance is required by no later than 5 days before the case management conference.
Step 10 – Certificate of Compliance
The parties must independently file a signed Certificate of Compliance substantially in the form set out in Appendix 3 to the PD. (Para 10.9). Compliance is required as soon as reasonably practicable after the claimant has filed the single joint Disclosure Review Document, but in any event in advance of the case management conference.
Disclosure Review Document
• The Disclosure Review Document (“DRD”) is intended to:
– facilitate the exchange of information and provide a framework for discussions around the initial scoping of disclosure;
– help the parties to agree a sensible and cost-effective approach to disclosure and identify areas of disagreement; and
– provide the court with parties’ proposals on disclosure, agreed or otherwise, so the court can make appropriate case management decisions at the case management conference.
• A DRD only needs to be completed where the parties are seeking an order for Extended Disclosure where a search-based Disclosure Model (i.e. Models C, D and/or E) are proposed.
• In complex cases, the DRD may be modified as required to ensure that information is provided to the court in a convenient and helpful format. This may include revising some of the questions asked in Sections 2 and 3 of the DRD or adding others relevant to the particular disclosure exercise to be undertaken.
• The DRD should be completed and submitted electronically as a single document to the court by the parties. The claimant will be responsible for doing this. In some proceedings, not every section of the DRD will need to be filled out, particularly if the proceedings are likely to require very little disclosure and/or if the identification and retrieval of documents is likely to be straightforward.
Completing Section 1A of the DRD
• The purpose of Section 1A of the DRD is to provide a concise summary of the parties’ proposals in relation to Extended Disclosure by identifying the Issues for Disclosure and the proposed Models for Disclosure in respect of such issues. The list of Issues for Disclosure must be completed in accordance with paragraphs 7 and 10 of the PD.
• Issues for Disclosure are defined at paragraph 7.3 of the PD as only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission.
• The Issues for Disclosure are a point of reference for further discussions between the parties about the manner and scope of disclosure to be given. They are not a statement of case. Nor are they intended to replace the List of Issues, which the parties may be required to prepare and file in advance of the case management conference, although the two documents should ultimately be consistent with each other.
• The list of Issues for Disclosure should:
– state whether each Issue for Disclosure is agreed or opposed and, if so, by whom;
– seek to avoid any duplication of issues, by using consolidated wording for any overlapping Issues for Disclosure where possible.
• In accordance with paragraph 7.5 of the PD, if a particular Issue for Disclosure has not been included in Section 1A by the claimant, or is described in a manner that is unacceptable to the defendant, using Section 1A of the DRD the defendant should provide the claimant with its proposed wording or alternative wording for inclusion in the draft list of Issues for Disclosure as soon as reasonably practicable but in any event no later than 14 days after service of the draft List of Issues for Disclosure.
• If the parties cannot agree whether certain issues should be included as an Issue for Disclosure, such issues should be included with a tick in the “No” section of the “Issue Agreed?” column, along with an indication of the party not agreeing to it (C for claimant, D for defendant, D1 etc. for each defendant in cases with multiple defendants).
It is to be competed as a Word Document, with any amendments proposed in redline by the parties during period when it is being discussed and finalised. A clean version should ultimately be provided to the court.
• Where the parties disagree as to the need for Extended Disclosure or seek Extended Disclosure on different Models in relation to an Issue for Disclosure, that should be recorded in the “Proposed model of Extended Disclosure” column.
Specifying Disclosure Models in Section 1A of the DRD
• The Disclosure Models under paragraph 8 are:
Model A: No order for Disclosure;
Model B: Limited Disclosure
Model C: Request-led Search-based Disclosure
Model D: Narrow search-based Disclosure, with or without Narrative Documents
Model E: Wide Search-based Disclosure
Please refer to the PD which tabulates the information to be provided.
• In addition to completing a list of Issues for Disclosure in Section 1A of the DRD, the parties should also specify which of the above Disclosure Models is proposed in respect of particular Issues for Disclosure.
• If a party proposes that a different Disclosure Model should apply to each party in the case of a particular Issue for Disclosure, this should be noted (e.g. “Model B for C” (Claimant), “Model D for D” (Defendant)).
• The claimant must update and re-circulate Section 1A of the DRD to identify areas of agreement and disagreement following the discussions required by paragraph 7.
Updating the Issues for Disclosure
• The scope of disclosure may require ongoing review, discussion and co-operation between the parties.
• The fact that a party has not included a particular Issue for Disclosure in the DRD, does not prevent that party from later proposing that a new Issue for Disclosure should be added to the list. For example, new factual issues relevant to the parties’ statements of case may be identified because of documents disclosed or evidence exchanged during the proceedings, or because of amendments to a statement of case. In the usual way, if the issues in dispute change during the proceedings, then it may well be appropriate to update the Issues for Disclosure and, as a consequence, Section 2 of the DRD.
• The parties may agree changes to the Issues for Disclosure after the first CMC without having to seek the court’s approval, unless the effect of such changes will be to materially change an order already made, or impact in a material way on the procedural timetable, costs and/or trial date.
Disclosure process methodology
• Where the court orders the parties to give Extended Disclosure, the parties will need to consider the appropriate methodology for the disclosure exercise, which includes the collection, processing, review and production of documents.
• The parties and their advisers are reminded of their Disclosure Duties to the court to discuss and endeavour to agree the approach to be taken to disclosure, always with a view to reducing the burden and cost of this process.
• Although the parties are under a duty to liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties where they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology, there may be points which cannot be agreed despite the best efforts of the parties, in which case the parties should request the assistance of the court in a Disclosure Guidance Hearing as set out paragraph 11 of the PD.
• This guidance identifies various forms of analytics, and technology or computer assisted review software which are currently available and in use. The parties should not, however, feel constrained from proposing new forms of processing and review software, which may be developed in the future and which may be appropriate for use in any given case.
• Although the parties may approach the disclosure exercise in different ways and using different technology, an appropriate methodology for a case involving electronic documents should always include the following:
– Electronic documents should be collected in a format that preserves and does not alter the underlying document metadata (where possible) thereby allowing the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure. This approach should generally be taken unless a document has been redacted.
The onus is on the parties to ensure they engage appropriate IT forensic expertise to assist with this process if they or their legal advisers do not have such expertise in house.
– A record should be kept of each stage of the process so that the methodology can be explained to the court if necessary after the event (see Methodology record below).
– To the fullest extent practicable, deduplication of the data set (using the hash values of the documents should be undertaken during processing and prior to giving disclosure of data to the other side.
• To the extent that this has not already been agreed between the parties or determined by the court, the parties should seek to agree the following as early in the process as possible:
– How the collection data set is to be identified and collected.
– Data culling measures applied at collection (i.e. date range, custodians, search terms).
– Any limitations that will be applied to the document collection process and the reasons for such limitations.
– Data exclusion measures applied during or post-collection (e.g. Domains such as @CompanyA.com).
– How each party intends to use analytics to conduct a proportionate review of the data set
– How each party intends to use technology assisted review to conduct a proportionate review of the data set (particularly where the review data set is likely to be in excess of 50,000 documents).
– The approach and format for production. This will have an impact on the approach to the review exercises, so parties should endeavour to agree this point at an early stage.
– Format of documents to be exchanged – parties are encouraged to exchange documents in native format unless there is a reasonable justification not to do so (e.g. redacted documents). Electronic documents should generally be made available in the form which allows the party receiving documents the same ability to access, search, review and display the documents as the party giving disclosure
– Management of document groups for production – parties should describe and agree the approach they will adopt for document groups (families). Often, it will be appropriate to agree not to break document groups (families) and to review a document group as a whole.
– If documents within a group are to be withheld at the production stage the parties should consider and agree whether to use placeholders indicating the reasons for document being withheld (eg Withheld for Privilege).
– Format for electronic exchange – parties are encouraged to agree database load file format and details to be included in load file/document index. All documents to be produced should be assigned a Disclosure Identification/Number. There is no need to produce a typed list of documents in the traditional sense, unless that will be of assistance to the parties.
• The parties should keep records of their methodology during the disclosure exercise, to include the following:
– Document sources not considered at collection and why.
– The deduplication4 method applied.
– Any DeNISTing5 applied.
– Approach to non-text searchable items.
– Approach with encrypted/password protected items (i.e. what measures were applied to decrypt).
– Search terms, including the number of search term responsive documents and search term responsive documents plus family members.
– Any use of clustering, concept searching, e-mail threading, categorisation and any other form of analytics or technology assisted review
• The options for deduplication are as follows; (A) Global – where documents across the entire processed data set are deduplicated against each other. This means that where a document exists in any location within the data set only one copy of it is retained; (B) Custodian – where documents held by the same custodian are deduplicated against each other only or (C) Custom – specific to the project 5 “DeNISTing” is a method of reducing the number of documents subject to lawyer or computer review by removing file types that are highly unlikely to have evidentiary value. DeNISTing” is the National Institute of Standards and Technology and the process of DeNISTing is based on a list of file types maintained by the agency.
‘3. Duties in relation to disclosure
3.1 A person who knows that it is or may become a party to proceedings that have been commenced or who knows that it may become a party to proceedings that may be commenced is under the following duties (“the Disclosure Duties”) to the court—
(1) to take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings;
(2) once proceedings have commenced against it or by it and in accordance with the provisions of this pilot scheme, to disclose, regardless of any order for disclosure made, known adverse documents, unless they are privileged;
(3) to comply with any order for disclosure made by the court;
(4) to undertake any search for documents in a responsible and conscientious manner to fulfil the stated purpose of the search;
(5) to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party; and
(6) to use reasonable efforts to avoid providing documents to another party that have no relevance to the Issues for Disclosure in the proceedings.
3.2 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court—
(1) to take reasonable steps to preserve documents within their control that may be relevant to any issue in the proceedings;
(2) to take reasonable steps to advise and assist the party to comply with its Disclosure Duties;
(3) to liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties where they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology;
(4) to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party; and
(5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.
3.3 The duties under paragraph 3.1 and 3.2 above are continuing duties that last until the conclusion of the proceedings (including any appeal) or until it is clear there will be no proceedings.
3.4 Where there is a known adverse document but it has not been located, the duty to disclose the document is met by that fact being disclosed, subject to any further order that the court may make.
4. Preservation of documents
4.1 Documents to be preserved in accordance with the duties under paragraph 3.1(1) and 3.2(1) above include documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business. Preservation includes, in suitable cases, making copies of sources and documents and storing them.
4.2 The duty under paragraph 3.1(1) and 3.2(1) includes—
(1) an obligation to suspend relevant document deletion or destruction processes for the duration of the proceedings;
(2) an obligation to send a written notification in any form to all relevant employees and former employees in accordance with paragraph 4.3 below; and
(3) an obligation to take reasonable steps so that agents or third parties who may hold documents on the party’s behalf do not delete or destroy documents that may be relevant to an issue in the proceedings.
4.3 A written notification under paragraph 4.2 above should—
(1) identify the documents or classes of documents to be preserved; and
(2) notify the recipient that they should not delete or destroy those documents and should take reasonable steps to preserve them.
4.4 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, must within a reasonable period of being instructed—
(1) notify their client of the need to preserve documents and of their obligations under paragraph 3.1 above; and
(2) obtain written confirmation from their client or an appropriate representative of their client that their client has taken the steps required under paragraphs 4.2 and 4.3 above.
4.5 Each party must confirm in writing when serving their particulars of claim or defence (as appropriate), that steps have been taken to preserve relevant documents in accordance with the duties under paragraph 3.1(1) and 3.2(1) above, and as required by paragraph 4.1 to 4.4 above.
5. Initial Disclosure
5.1 Save as provided below, and save in the case of a Part 7 claim form without particulars of claim or a Part 8 claim form, each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents that lists and is accompanied by copies of—
(1) the key documents on which it has relied (expressly or otherwise) in support of the claims or defences advanced in its statement of case (and including the documents referred to in that statement of case); and
(2) the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.
5.2 This form of disclosure is known as “Initial Disclosure”.
5.3 Initial Disclosure is not required where—
(1) the parties have agreed to dispense with it (see paragraph 5.8 below);
(2) the court has ordered that it is not required (see paragraph 5.10 below); or
(3) a party concludes and states in writing, approaching the matter in good faith, that giving Initial Disclosure would involve it or any other party providing (after removing duplicates, and excluding documents referred to at paragraph 5.4(3)) more than (about) whichever is the larger of 1000 pages or 200 documents (or such higher but reasonable figure as the parties may agree), at which point the requirement to give Initial Disclosure ceases for all parties for the purposes of the case.
Documents comprising media not in page form are not included in the calculation of the page or document limit at (3) but, where provided pursuant to a requirement to give Initial Disclosure, should be confined strictly to what is necessary to comply with paragraph 5.1 above.
5.4 A party giving Initial Disclosure—
(1) is under no obligation to undertake a search for documents beyond any search it has already undertaken or caused to be undertaken for the purposes of the proceedings (including in advance of the commencement of the proceedings);
(2) should briefly describe in its Initial Disclosure List of Documents any searches just mentioned;
(3) should not provide unless requested (but should still list in the Initial Disclosure List of Documents) documents by way of Initial Disclosure if such documents—
(a) have already been provided to the other party, whether by disclosure before proceedings start (see CPR 31.16) or through pre-action correspondence or otherwise in the period following intimation of the proceedings (and including when giving Initial Disclosure with a statement of case that is being amended); or
(b) are known to be or have been in the other party’s possession.
5.5 Unless otherwise ordered, or agreed between the parties, copies of documents shall be provided in electronic form for the purpose of Initial Disclosure. The Initial Disclosure List of Documents should be filed but the documents must not be filed.
5.6 In proceedings where a statement of case is to be served on a defendant out of the jurisdiction Initial Disclosure is not required in respect of that defendant unless and until that defendant files an acknowledgement of service that does not contest the jurisdiction, or files a further acknowledgement of service under CPR 11(7)(b).
5.7 For the avoidance of doubt, Initial Disclosure does not require any document to be translated.
5.8 The parties may agree in writing, before or after the commencement of proceedings, to dispense with, or defer, Initial Disclosure. Each party should record its respective reasons for any agreement, so that those reasons may be available to the court, on request, at any case management conference. The court may set aside such an agreement if it considers that Initial Disclosure is likely to provide significant benefits and the costs of providing Initial Disclosure are unlikely to be disproportionate to such benefits.
5.9 The court shall disregard any prior agreement to dispense with Initial Disclosure when considering whether to order Extended Disclosure.
5.10 If a party is requested but does not agree to dispense with Initial Disclosure, the requesting party may apply to the court with notice to the other party for directions limiting or abrogating the obligation to provide Initial Disclosure if it considers compliance with the obligation will incur disproportionate cost or be unduly complex. Such an application must be made by application notice, supported by evidence where necessary, and, save in exceptional cases, will be dealt with without a hearing or at a short telephone hearing.
5.11 In an appropriate case the court may, on application, and whether or not Initial Disclosure has been given, require a party to disclose documents to another party where that is necessary to enable the other party to understand the claim or defence they have to meet or to formulate a defence or a reply.
5.12 A complaint about Initial Disclosure shall be dealt with at the first case management conference unless, exceptionally and on application, the court considers that the issue should be resolved at an earlier hearing.
5.13 A significant failure to comply with the obligation to provide Initial Disclosure may be taken into account by the court when considering whether to make an order for Extended Disclosure and the terms of such an order. It may also result in an adverse order for costs.
5.14 For the avoidance of doubt, nothing in this paragraph affects the operation of paragraph 7.3 of Practice Direction 16.
6. Extended Disclosure
6.1 A party wishing to seek disclosure of documents in addition to, or as an alternative to, Initial Disclosure must request Extended Disclosure. No application notice is required. However, the parties will be expected to have completed the Disclosure Review Document pursuant to paragraphs 7 and following below.
6.2 The court will determine whether to order Extended Disclosure at the first case management conference or, if directed by the court, at another hearing convened for that purpose or without a hearing.
6.3 Save where otherwise ordered, Extended Disclosure involves using Disclosure Models (see paragraph 8 below) after Issues for Disclosure have been identified (see paragraph 7 below). The court will only make an order for Extended Disclosure where it is persuaded that it is appropriate to do so in order fairly to resolve one or more of the Issues for Disclosure.
6.4 In all cases, an order for Extended Disclosure must be reasonable and proportionate having regard to the overriding objective including the following factors—
(1) the nature and complexity of the issues in the proceedings;
(2) the importance of the case, including any non-monetary relief sought;
(3) the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence;
(4) the number of documents involved;
(5) the ease and expense of searching for and retrieval of any particular document (taking into account any limitations on the information available and on the likely accuracy of any costs estimates);
(6) the financial position of each party; and
(7) the need to ensure the case is dealt with expeditiously, fairly and at a proportionate cost.
6.5 A request for Extended Disclosure must specify which of the Disclosure Models listed in paragraph 8 below is proposed for each Issue for Disclosure defined in paragraph 7 below. It is for the party requesting Extended Disclosure to show that what is sought is appropriate, reasonable and proportionate (as defined in paragraph 6.4). Where Disclosure Model D or E is proposed parties should be ready to explain to the court why Disclosure Model C is not sufficient.
6.6 The objective of relating Disclosure Models to Issues for Disclosure is to limit the searches required and the volume of documents to be disclosed. Issues for Disclosure may be grouped. Disclosure Models should not be used in a way that increases cost through undue complexity.
7. Identifying the Issues for Disclosure
7.1 Within 28 days of the final statement of case each party should state, in writing, whether or not it is likely to request Extended Disclosure to include one or more of Models B, C, D or E (see paragraph 8 below) on one or more issues in the case. At this point it should not particularise the Model(s) or the issue(s) in the case.
7.2 Where one or more of the parties has indicated it is likely to request Extended Disclosure, the claimant must within 42 days of the final statement of case, prepare and serve on the other parties a draft List of Issues for Disclosure unless the equivalent of such a list has already been agreed between the parties (for example, as part of a fuller list of issues). The List of Issues for Disclosure should be set out using Section 1A of the Disclosure Review Document (see further paragraph 10 below).
7.3 “Issues for Disclosure” means for the purposes of disclosure only those key issues in dispute, which the parties consider will need to be determined by the court with some reference to contemporaneous documents in order for there to be a fair resolution of the proceedings. It does not extend to every issue which is disputed in the statements of case by denial or non-admission.
7.4 The claimant should seek to ensure that the draft List of Issues for Disclosure provides a fair and balanced summary of the key areas of dispute identified by the parties’ statements of case and in respect of which it is likely that one or other of the parties will be seeking Extended Disclosure.
7.5 In the event that a particular Issue for Disclosure has not been included in the List of Issues for Disclosure, or is described in a manner that is unacceptable to the defendant, using section 1A of the Disclosure Review Document the defendant should provide the claimant with its proposed wording or alternative wording for inclusion in the draft List of Issues for Disclosure as soon as practicable but in any event no later than 14 days after service of the draft List of Issues for Disclosure.
7.6 In advance of the first case management conference, the parties must discuss and seek to agree the draft List of Issues for Disclosure. They should consider whether any draft Issue for Disclosure can be removed. For each Issue for Disclosure that is maintained, the parties should indicate at this point, using section 1A of the Disclosure Review Document, which Model of Extended Disclosure is sought for each party. Where Model C Disclosure is contemplated the parties should discuss the requests that might apply for the purpose of that disclosure (see further paragraph 10.5 below).
7.7 The List of Issues for Disclosure may be revised or supplemented at any time prior to or following the case management conference, including as a result of statements of case or amended statements of case subsequently served or discussions between the parties in relation to the Disclosure Review Document.
7.8 If the parties are (subject to the court) agreed that there are preliminary issues suitable for determination before other issues in the case, or that the case should be divided into stages, the parties may apply to the court before any case management conference for an order for the trial of those issues or for trial in stages (and related directions), and they may agree in writing to limit the work towards disclosure required by this Practice Direction until that application has been heard.
7.9 In an appropriate case where the claimant is acting in person and a defendant is not the court may request the legal representatives of the defendant to lead on the preparation of the List of Issues for Disclosure.’
Meeting with Client • Identify electronically stored information (‘ESI’) and where stored
• Identify custodians
• Consider volume of ESI and approach to pre-action disclosure
• Consider the role of technology
• Is search for ESI required & if so what is reasonable at this stage?
• Duty to notify client of need to preserve documents (PD7)
Pre-issue discussions with other party (no settlement following letter before claim) • Categories of documents
• Where ESI is stored and what types of systems
• Tools and techniques for making the process cost-effective
• Presentation of ESI
• Format for exchanging ESI
• Format for inspecting ESI
• Cost sharing/allocation for ESI
• Procedure of neutral electronic reporting (PD9/32)
• Consider what is reasonable search for proceedings (PD20)
NB ED Questionnaire requires view on disclosure from other party
• Use of technology in management of ESI and proceedings (PD8)
• Parties should consider staged disclosure (CPR 31.13)
Issue of Claim Form • Parties to attempt agreement on disclosure: application possible if no agreement (PD 14-15/17-19)
• Parties to lodge with Court (CPR 31.5(4))
Disclosure Report (CPR 31.5(3))
• Identifies ESI (including custodians and how stored)
• Estimated costs for different levels of disclosure
• Proposed directions
ED Questionnaire (PD 10-13)
• Covers own disclosure and by other party
• Identifies parameters of ‘reasonable search’ (i.e. data range, custodians, databases)
• Identifies methods of search (i.e. keywords, other automated techniques)
• Identifies potential problems
• Considers presentation of documents
• Identifies approach to inspections
• Identifies your proposals for disclosure and inspection of other parties
First CMC • Seek to agree proposal in relation to disclosure, court will approve or, if not proposed, give directions (CPR 31.5(5))
Disclosure • Parties exchange lists and Disclosure statements explaining extent of search. N.B. Parties can agree to dispense with both (CPR 31.10)
PD 31B – DISCLOSURE OF ELECTRONIC DOCUMENTS
PD51U does not apply in the Central London County Court. However PD 31B does and emphasises the need for the parties to engage in discussions and to reach an agreement from the outset (for example, paragraphs 8 and 9, and paragraph 19). A failure to do this may result in the court ordering the defaulting party to repeat the disclosure exercise.
Purpose, scope and interpretation
1 Rule 31.4 contains a broad definition of ‘document’. This extends to Electronic Documents.
2 The purpose of this Practice Direction is to encourage and assist the parties to reach agreement in relation to the disclosure of Electronic Documents in a proportionate and cost-effective manner.
3 Unless the court orders otherwise, this Practice Direction only applies to proceedings that are (or are likely to be) allocated to the multi-track.
4 Unless the court orders otherwise, this Practice Direction only applies to proceedings started on or after 1st October 2010. Paragraph 2A.2 to 2A.5 of Practice Direction 31A in force immediately before that date continues to apply to proceedings started before that date.
5 In this Practice Direction –
(1) ‘Data Sampling’ means the process of checking data by identifying and checking representative individual documents;
(2) ‘Disclosure Data’ means data relating to disclosed documents, including for example the type of document, the date of the document, the names of the author or sender and the recipient, and the party disclosing the document;
(3) ‘Electronic Document’ means any document held in electronic form. It includes, for example, email and other electronic communications such as text messages and voicemail, word-processed documents and databases, and documents stored on portable devices such as memory sticks and mobile phones. In addition to documents that are readily accessible from computer systems and other electronic devices and media, it includes documents that are stored on servers and back-up systems and documents that have been deleted. It also includes metadata and other embedded data which is not typically visible on screen or a print out;
(4) ‘Electronic Image’ means an electronic representation of a paper document;
(5) ‘Electronic Documents Questionnaire’ means the questionnaire in the Schedule to this Practice Direction;
(6) ‘Keyword Search’ means a software-aided search for words across the text of an Electronic Document;
(7) ‘Metadata’ is data about data. In the case of an Electronic Document, metadata is typically embedded information about the document which is not readily accessible once the Native Electronic Document has been converted into an Electronic Image or paper document. It may include (for example) the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an email. Metadata may be created automatically by a computer system or manually by a user;
(8) ‘Native Electronic Document’ or ‘Native Format’ means an Electronic Document stored in the original form in which it was created by a computer software program; and
(9) ‘Optical Character Recognition (OCR)’ means the computer-facilitated recognition of printed or written text characters in an Electronic Image in which the text-based contents cannot be searched electronically.
6 When considering disclosure of Electronic Documents, the parties and their legal representatives should bear in mind the following general principles –
(1) Electronic Documents should be managed efficiently in order to minimize the cost incurred;
(2) technology should be used in order to ensure that document management activities are undertaken efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding objective;
(4) Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.
Preservation of documents
7 As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.
Discussions between the parties before the first Case Management Conference in relation to the use of technology and disclosure
8 The parties and their legal representatives must, before the first case management conference, discuss the use of technology in the management of Electronic Documents and the conduct of proceedings, in particular for the purpose of –
(1) creating lists of documents to be disclosed;
(2) giving disclosure by providing documents and information regarding documents in electronic format; and
(3) presenting documents and other material to the court at the trial.
9 The parties and their legal representatives must also, before the first case management conference, discuss the disclosure of Electronic Documents. In some cases (for example heavy and complex cases) it may be appropriate to begin discussions before proceedings are commenced. The discussions should include (where appropriate) the following matters –
(1) the categories of Electronic Documents within the parties’ control, the computer systems, electronic devices and media on which any relevant documents may be held, storage systems and document retention policies;
(2) the scope of the reasonable search for Electronic Documents required by rule 31.7;
(3) the tools and techniques (if any) which should be considered to reduce the burden and cost of disclosure of Electronic Documents, including –
(a) limiting disclosure of documents or certain categories of documents to particular date ranges, to particular custodians of documents, or to particular types of documents;
(b) the use of agreed Keyword Searches;
(c) the use of agreed software tools;
(d) the methods to be used to identify duplicate documents;
(e) the use of Data Sampling;
(f) the methods to be used to identify privileged documents and other non-disclosable documents, to redact documents (where redaction is appropriate), and for dealing with privileged or other documents which have been inadvertently disclosed; and
(g) the use of a staged approach to the disclosure of Electronic Documents;
(4) the preservation of Electronic Documents, with a view to preventing loss of such documents before the trial;
(5) the exchange of data relating to Electronic Documents in an agreed electronic format using agreed fields;
(6) the formats in which Electronic Documents are to be provided on inspection and the methods to be used;
(7) the basis of charging for or sharing the cost of the provision of Electronic Documents, and whether any arrangements for charging or sharing of costs are final or are subject to re-allocation in accordance with any order for costs subsequently made; and
(8) whether it would be appropriate to use the services of a neutral electronic repository for storage of Electronic Documents.
The Electronic Documents Questionnaire
10 In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.
11 The answers to the Electronic Documents Questionnaire must be verified by a statement of truth.
12 Answers to the Electronic Documents Questionnaire will only be available for inspection by non-parties if permission is given under rule 5.4C(2).
13 Rule 31.22 makes provision regulating the use of answers to the Electronic Documents Questionnaire.
Preparation for the first Case Management Conference
14 The documents submitted to the court in advance of the first case management conference should include a summary of the matters on which the parties agree in relation to the disclosure of Electronic Documents and a summary of the matters on which they disagree.
15 If the parties indicate that they have been unable to reach agreement in relation to the disclosure of Electronic Documents and that no agreement is likely, the court will give written directions in relation to disclosure or order a separate hearing in relation to disclosure. When doing so, the court will consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire within 14 days or such other period as the court may direct.
16 The person signing the Electronic Documents Questionnaire should attend the first case management conference, and any subsequent hearing at which disclosure is likely to be considered.
Where the parties are unable to reach an appropriate agreement in relation to the disclosure of Electronic Documents
17 If at any time it becomes apparent that the parties are unable to reach agreement in relation to the disclosure of Electronic Documents, the parties should seek directions from the court at the earliest practical date.
18 If the court considers that the parties’ agreement in relation to the disclosure of Electronic Documents is inappropriate or insufficient, the court will give directions in relation to disclosure. When doing so, the court will consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire within 14 days or such other period as the court may direct.
19 If a party gives disclosure of Electronic Documents without first discussing with other parties how to plan and manage such disclosure, the court may require that party to carry out further searches for documents or to repeat other steps which that party has already carried out.
The reasonable search
20 The extent of the reasonable search required by rule 31.7 for the purposes of standard disclosure is affected by the existence of Electronic Documents. The extent of the search which must be made will depend on the circumstances of the case including, in particular, the factors referred to in rule 31.7(2). The parties should bear in mind that the overriding objective includes dealing with the case in ways which are proportionate.
21 The factors that may be relevant in deciding the reasonableness of a search for Electronic Documents include (but are not limited to) the following –
(1) the number of documents involved;
(2) the nature and complexity of the proceedings;
(3) the ease and expense of retrieval of any particular document. This includes:
(a) the accessibility of Electronic Documents including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents;
(b) the location of relevant Electronic Documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
(c) the likelihood of locating relevant data;
(d) the cost of recovering any Electronic Documents;
(e) the cost of disclosing and providing inspection of any relevant Electronic Documents; and
(f) the likelihood that Electronic Documents will be materially altered in the course of recovery, disclosure or inspection;
(4) the availability of documents or contents of documents from other sources; and
(5) the significance of any document which is likely to be located during the search.
22 Depending on the circumstances, it may be reasonable to search all of the parties’ electronic storage systems, or to search only some part of those systems. For example, it may be reasonable to decide not to search for documents coming into existence before a particular date, or to limit the search to documents in a particular place or places, or to documents falling into particular categories.
23 In some cases a staged approach may be appropriate, with disclosure initially being given of limited categories of documents. Those categories may subsequently be extended or limited depending on the results initially obtained.
24 The primary source of disclosure of Electronic Documents is normally reasonably accessible data. A party requesting under rule 31.12 specific disclosure of Electronic Documents which are not reasonably accessible must demonstrate that the relevance and materiality justify the cost and burden of retrieving and producing it.
Keyword and other automated searches
25 It may be reasonable to search for Electronic Documents by means of Keyword Searches or other automated methods of searching if a full review of each and every document would be unreasonable.
26 However, it will often be insufficient to use simple Keyword Searches or other automated methods of searching alone. The injudicious use of Keyword Searches and other automated search techniques –
(1) may result in failure to find important documents which ought to be disclosed, and/or
(2) may find excessive quantities of irrelevant documents, which if disclosed would place an excessive burden in time and cost on the party to whom disclosure is given.
27 The parties should consider supplementing Keyword Searches and other automated searches with additional techniques such as individually reviewing certain documents or categories of documents (for example important documents generated by key personnel) and taking such other steps as may be required in order to justify the selection to the court.
Disclosure of metadata
28 Where copies of disclosed documents are provided in Native Format in accordance with paragraph 33 below, some metadata will be disclosed with each document. A party requesting disclosure of additional metadata or forensic image copies of disclosed documents (for example in relation to a dispute concerning authenticity) must demonstrate that the relevance and materiality of the requested metadata justify the cost and burden of producing that metadata.
29 Parties using document management or litigation support systems should be alert to the possibility that Metadata or other useful information relating to documents may not be stored with the documents.
Lists of documents
30 If a party is giving disclosure of Electronic Documents, paragraph 3 of Practice Direction 31A is to be read subject to the following –
(1) Form N265 may be amended to accommodate the sub-paragraphs which follow;
(2) a list of documents may by agreement between the parties be an electronic file in .csv (comma-separated values) or other agreed format;
(3) documents may be listed otherwise than in date order where a different order would be more convenient;
(4) save where otherwise agreed or ordered, documents should be listed individually if a party already possesses data relating to the document (for example, type of document and date of creation) which make this possible (so that as far as possible each document may be given a unique reference number);
(5) a party should be consistent in the way in which documents are listed;
(6) consistent column headings should be repeated on each page of the list on which documents are listed, where the software used for preparing the list enables this to be carried out automatically; and
(7) the disclosure list number used in any supplemental list of documents should be unique and should run sequentially from the last number used in the previous list.
Provision of disclosure data in electronic form
31 Where a party provides another party with disclosure data in electronic form, the following provisions will apply unless the parties agree or the court directs otherwise –
(1) Disclosure data should be set out in a single, continuous table or spreadsheet, each separate column containing exclusively one of the following types of disclosure data –
(a) disclosure list number (sequential)
(c) document type
(f) disclosure list number of any parent or covering document;
(2) other than for disclosure list numbers, blank entries are permissible and preferred if there is no relevant disclosure data (that is, the field should be left blank rather than state ‘Undated’);
(3) dates should be set out in the alphanumeric form ‘01 Jan 2010’; and
(4) Disclosure data should be set out in a consistent manner.
Provision of electronic copies of disclosed documents
32 The parties should co-operate at an early stage about the format in which Electronic Documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to the court for directions at the earliest practical date, if possible at the first case management conference.
33 Save where otherwise agreed or ordered, electronic copies of disclosed documents should be provided in their Native Format, in a manner which preserves Metadata relating to the date of creation of each document.
34 A party should provide any available searchable OCR versions of Electronic Documents with the original. A party may however choose not to provide OCR versions of documents which have been redacted. If OCR versions are provided, they are provided on an ‘as is’ basis, with no assurance to the other party that the OCR versions are complete or accurate.
(1) Subject to sub-paragraph (2) below, if a party is providing in electronic form copies of disclosed documents and wishes to redact or otherwise make alterations to a document or documents, then –
(a) the party redacting or altering the document must inform the other party in accordance with rule 31.19 that redacted or altered versions are being supplied; and
(b) the party redacting or altering the document must ensure that the original unredacted and unaltered version is preserved, so that it remains available to be inspected if required.
(2) Sub-paragraph (1) above does not apply where the only alteration made to the document is an alteration to the Metadata as a result of the ordinary process of copying and/or accessing the document. Sub-paragraph (1) does apply to the alteration or suppression of Metadata in other situations.
36 If Electronic Documents are best accessed using technology which is not readily available to the party entitled to disclosure, and that party reasonably requires additional inspection facilities, the party making disclosure shall co-operate in making available to the other party such reasonable additional inspection facilities as may be appropriate in order to afford inspection in accordance with rule 31.3.
Electronic Documents Questionnaire
Part 1 – Your disclosure
Extent of a reasonable search
Date range and custodians
1. What date range do you consider that your searches for Electronic Documents should cover (‘the date range’)?
2. Identify the custodians or creators of your Electronic Documents whose repositories of documents you consider should be searched1.
3. Which forms of electronic communication were in use during the date range (so far as is relevant to these proceedings)?
<=”” the=”” searching=”” you=”” so,=”” if=”” (b)=”” and=”” available,=”” communication=”” this=”” of=”” archives=”” or=”” back-ups=”” are=””>
A B C D E
Communication In use during the date range? (yes/no) Are you searching for relevant documents in this category? (yes/no) Where and on what type of software/equipment/media is this communication stored2?
ii) Other (provide details for each type4).
4. Apart from attachments to emails, which forms of Electronic Documents were created or stored by you during the date range?
A B C D E
Document Type In use during the date range? (yes/no) Are you searching for relevant documents in this category? (yes/no) Where and on what type of software/equipment/media are these documents5?
(a) Are back-ups or archives of these documents available, and (b) if so, are you searching the back-ups or archives?
i) Word (or equivalent – state which)
ii) Excel (or equivalent – state which)
iii) Electronic Images6
iv) Other7 (state which)
Databases of Electronic Documents
5. In the following table identify database systems, including document management systems, used by you during the date range and which may contain disclosable Electronic Documents.
A B C D E
Name Brief description Nature of data held Are you disclosing documents held in this database? (yes/no) Proposals for provision of relevant documents to or access by other parties to this litigation
Method of search
6. Do you consider that Keyword Searches should be used as part of the process of determining which Electronic Documents you should disclose?
If yes, provide details of –
(1) the keywords used or to be used (by reference, if applicable, to individual custodians, creators, repositories, file types and/or date ranges)8; and
(2) the extent to which the Keyword Searches have been or will be supplemented by a review of individual documents.
Other types of automated searches
7. Do you consider that automated searches or automated techniques other than Keyword Searches (for example, concept searches or clustering) should be used as part of the process of determining which Electronic Documents you should disclose? If yes, provide details of –
(1) the process(es) used or to be used (by reference, if applicable, to individual custodians, creators, repositories, file types and/or date ranges);
(2) the extent to which the processes have been or will be supplemented by a review of individual documents; and
(3) how the methodology of automated searches will be made available for consideration by other parties.
8. If the answer to Question 6 or 7 is yes, state whether attachments to (a) emails (b) compressed files (c) embedded files and (d) imaged text will respond to your Keyword Searches or other automated search.
9. Are you using or intending to use computer software for other purposes in relation to disclosure? If so, provide details of the software, processes and methods to be used.
Potential problems with the extent of search and accessibility of Electronic Documents
10. Do any of the sources and/or documents identified in this Electronic Documents Questionnaire raise questions about the reasonableness of the search which ought to be taken into account9? If so, give details.
11. Are any documents which may be disclosable encrypted, password-protected or for other reasons difficult to access, or do you have any reason to believe that they may be10? If so, state which of the categories identified at Questions 3, 4 and 5 above are affected, and your proposals for making them accessible.
12. Are you aware of any other points in relation to disclosure of your Electronic Documents which require discussion between the parties? If so, give details.
Preservation of Electronic Documents
13. Do you have a document retention policy?
14. Have you given an instruction to preserve Electronic Documents, and if so, when?
15. Subject to re-consideration after receiving the responses of other parties to this Electronic Documents Questionnaire, (a) in what format and (b) on what media do you intend to provide to other parties copies of disclosed documents which are or will be available in electronic form?
16. Subject to re-consideration after receiving the responses of other parties to this Electronic Documents Questionnaire, do you intend to provide other parties with Disclosure Data electronically, and if so, (a) in what format and (b) on what media?
17. Insofar as you have available or will have available searchable OCR versions of Electronic Documents, do you intend to provide the searchable OCR version to other parties11? If not, why not?
Part 2 – The disclosure of other parties
The extent and content of their search
18. Do you at this stage have any proposals about the date ranges which should be searched by other parties to the proceedings? If so, provide details.
19. Do you at this stage have any proposals about the custodians or creators whose repositories of documents should be searched for disclosable documents by other parties to the proceedings? If so, provide details12.
20. Do you consider that the other party(ies) should disclose all available metadata13 attaching to any documents? If yes, provide details of the documents or categories of documents.
Proposals for the method to be adopted for their searches
21. Do you at this stage have any proposals about the Keyword Searches, or other automated searches, which should be applied by other parties to their document sets? If so, provide details.
22. Subject to re-consideration after receiving the responses of other parties to this Electronic Documents Questionnaire, (a) in what format and (b) on what media do you wish to receive copies of disclosed documents which are or will be available in electronic form?
23. Subject to re-consideration after receiving the responses of other parties to this Electronic Documents Questionnaire, do you wish to receive Disclosure Data electronically, and if so, (a) in what format and (b) on what media?
STATEMENT OF TRUTH
*[I believe][The [claimant][defendant] believes] that the facts stated in the answers to this Electronic Documents Questionnaire are true.
*I am duly authorized by the [claimant][defendant] to sign this statement.
Name of legal representative’s firm_______________
Position or office held (if signing on behalf of firm or company) _______________
* delete as appropriate
WARNING: Unless the court makes some other order, the answers given in this document may only be used for the purposes of the proceedings in which the document is produced unless it has been read to or by the court or referred to at a hearing which has been held in public or the Court gives permission or the party who has completed this questionnaire agrees.
1. Technical expressions are defined in Practice Direction 31B.
2. The questions in the Electronic Documents Questionnaire are not intended to give rise to any implication about how disclosure should or should not be carried out. They are intended only to provide information to other parties and to the court.
3. Further facts and matters may come to parties’ attention over the course of the proceedings which affect the answers to the Electronic Documents Questionnaire. Where detailed information is not yet available at the time the Electronic Documents Questionnaire is first answered, parties should give such information as they can, and supplement or amend their answers when further information is available. Answers should be updated by notifying other parties and the court without undue delay, and in any event before each case management conference at which disclosure is likely to be considered.
4. Some of the questions in the Electronic Documents Questionnaire require only a brief answer which may need to be elaborated after Electronic Documents Questionnaires have been exchanged. The purpose of such questions is to assist the parties in identifying the points which may require elaboration in order for meaningful discussions to take place between them.
5. Questions which refer to sources of Electronic Documents that are not considered to be relevant may be answered with a statement to that effect.
6. Questions about ‘your’ documents and about software, hardware or systems used by ‘you’ are directed, in the case of solicitors, to the solicitor’s lay client’s documents or to documents prepared on the lay client’s behalf.
1. Include names of all those who may have or have had custody of disclosable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians.
2. State the geographical location (if known). Consider (at least) servers, desktop PCs, laptops, notebooks, handheld devices, PDA devices, off-site storage, removable storage media (for example, CD-ROMs, DVDs, USB drives, memory sticks) and databases.
3. Consider all types of e-mail system (for example, Outlook, Lotus Notes, web-based accounts), whether stored on personal computers, portable devices or in web-based accounts (for example, Yahoo, Hotmail, Gmail).
4. For example, instant messaging, voicemail, VOIP (Voice Over Internet Protocol), recorded telephone lines, text messaging, audio files, video files.
5. State the geographical location (if known). Consider (at least) servers, desktops and laptops.
6. For example, .pdf. .tif, .jpg.
7. For example, PowerPoint or equivalent, specialist documents (such as CAD Drawings).
8. Where Keyword Searches are used in order to identify irrelevant documents which are to be excluded from disclosure (for example a confidential name of a client or customer), a general description of the type of search may be given.
9. See Practice Direction 31B, which refers to the following matters which may be relevant: (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; (d) the availability of documents or contents of documents from other sources; and (e) the significance of any document which is likely to be located during the search.
10. For example, back-ups, archives, off-site or outsourced document storage, documents created by former employees, documents stored in other jurisdictions, documents in foreign languages.
11. There is no requirement that you should obtain OCR versions of documents, and this question is directed only to OCR versions which you have available or expect to have available to you. If you do provide OCR versions to another party, they will be provided by you on an ‘as is’ basis, with no assurance to the other party that the OCR versions are complete or accurate. You may wish to exclude provision of OCR versions of documents which have been redacted.
12. Include names of all those who may have or have had custody of disclosable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians.
13. ‘Metadata’ is information about the document or file which is recorded in the computer, such as the date and time of creation or modification of a word-processing file, or the author and the date and time of sending of an e-mail. The question is directed to the more extensive Metadata which may be relevant where for example authenticity is disputed.