E-Disclosure: What it means for you

Introduction

Since the introduction of the new court rules on disclosure for all court proceedings starting after 1 October 2010, parties must specifically address disclosure of any relevant documents held in an electronic form (also known as e-disclosure). Electronic documents may have to be available for inspection by all parties in the same way as hard copy documents. It will be necessary to ensure that all electronic documents are able to be accessed, searched and reviewed by all parties in a simple manner.

In this Alert:

• Key Points
• Process
• Identification of relevant documents
• Gathering data
• Review
• Conclusion

Key Points

• For all court proceedings starting after 1 October 2010 parties must specifically address disclosure of electronic documents.
• Electronic documents are classed as all documents held in soft copy form on a computer system including all emails, both sent and received.
• Handling disclosure of electronic documents may be more difficult than disclosure of hard copy documents and you may require specialist assistance.
• There is much that can be done to prepare in advance for an electronic disclosure exercise.

Process

The e-disclosure process can be divided into four key stages:

• Identifying and gathering data;
• Preservation and collection of data;
• Processing review and analysis; and
• Presentation or disclosure.

Identification of relevant documents

Identifying relevant electronic documents and then disclosing them may be more complex than with hard copy documents. As well as the data having to be gathered off the data system, it will need to be electronically sorted, to ensure it is disclosable.

For this reason, in some cases it may be expedient for hard copy documents to be scanned and Optical Character Recognition (OCR) applied so that the documents are searchable. Relevant documents can then be easily identified.

Gathering data

It is necessary to disclose all relevant documents. It is therefore important to ensure the net is cast wide enough. Documents must be gathered from all relevant devices – which can include Blackberrys and smartphones as well as main computer networks.

Further, a key element to remember in using electronic documents is that deleting an email or a document does not remove its imprint from your computer system – it can though make it more difficult (and more expensive) to access. For example, if all emails are automatically deleted after 6 months, it would be necessary to recover these in order that they can be disclosed. The Courts will not accept deletion as a reason not to disclose an important document and the cost of accessing the deleted documents could be passed on.

Review

But, on the plus side, the electronic nature of documents can mean that the review process is simpler, more effective and less time-consuming.

A combination of using key words and sampling the data may help to limit the numbers of documents needing to be reviewed. This means that the costly process of lawyers reviewing all the documents can be limited to those that are most likely to be relevant.

Once the data has been reviewed, relevant documents can be easily disclosed in electronic form.

Conclusion

Disputes can highlight the pitfalls associated with electronic documents. Early consideration of the issues associated with storage and disclosure of electronic documents can limit both time and cost involved. We would be happy to discuss these issues with you.