Including the Electronic – A History of Electronic Disclosure (Part Three)

By: Dr Tristan Jenkinson

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Introduction

In this series I am discussing the history and development of electronic disclosure in the courts of England and Wales. In parts one and two I covered the Rules of the Supreme Court (RSC), Peruvian Guano, the Woolf Reforms and the implementation of the Civil Procedure Rules (CPR). Here in part three I talk about the Cresswell Report and how the Civil Procedure Rules were amended to specifically include electronically stored data as part of disclosure.

What is a Document?

The Civil Procedure Rules at their implementation included no specific guidance as to electronic documents and their disclosure. This was, at least in part, because it was prior to the real growth of electronic evidence, and also due to the wide-ranging definition of what constitutes a document. CPR31.4 sets out the meaning of a document as “anything in which information of any description is recorded”.

The topic of “What is a document?” is an interesting one. The Cresswell Report, which I discuss further momentarily (and a copy of which can be found in the national archives here), covers this topic in some detail. I have included the main points below.

RSC Order 24, which covered disclosure prior to the implementation of the CPR, did not include a definition of what a document was – even though Rule 1 specifically used the term. However, this should not have caused much of an issue, because the Civil Evidence Act 1968 defined “document” quite widely, including those created using modern technology at the time – stating (at Section 10 Paragraph 1 which can be found here):

… “document” includes, in addition to a document in writing—

(a) any map, plan, graph or drawing;

(b) any photograph;

(c) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and

(d) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom;

There were also a number of cases in which the Courts generated the relevant case law building to the coverage of electronic documents. Grant v. Southwestern and County Properties Ltd [1975] Ch 185 (Which you can read more about here) established that a tape recording was a ‘document’.

Subsequently, and citing the above, Derby & Co. Ltd v. Weldon (No.9) [1991] 2 All ER 901 (More details here) appears to have been an interesting case. The plaintiffs (claimants) provided the defendants with printouts from a computer database. The defendants queried this, wanting access to the computer in order to obtain additional information about a number of transactions which were at issue in the case. The plaintiffs claimed that the computer was not a document and so would not be subject to discovery (as it was then).

Justice Vinelott held that that a database “so far as it contained information capable of being retrieved and converted into readable form, and whether stored in the computer itself or in back-up files, was a document”. However, the discovery ordered was limited to material at issue, and other conditions were also put in place to protect the records and other data on the computer.

Referencing the Grant v Southwestern case above, and effectively extending the concept of document to cover documents held in any form of electronic media, Justice Vinelott went on to state:

“. . there can be no distinction in principle between the tape used to record a telephone conversation in Grant v Southwestern and County Properties Ltd, which was an ordinary analogue tape on which the shape of sound waves is, as it were, mimicked by the pattern of the chemical deposit on the tape, and a compact disc or digital tape on which sound, speech as well as music, is mapped by co-ordinates and recorded in the form of groups of binary numbers. And so no clear dividing line can be drawn between digital tape recording messages and the database of a computer, on which information which has been fed into the computer is analysed and recorded in a variety of media in binary language.”

Upon implementation of the Civil Procedure Rules, we were provided with the all-encompassing definition of a document as: “anything in which information of any description is recorded”. Surprisingly though, no specific guidance was included with regard to electronic documents, they were simply treated as documents under this new definition (and so still fell to be disclosed). This would soon change – in 2005.

The Cresswell Report and PD 31 Paragraph 2A (2005)

The Cresswell Report (available here) was prepared by a working party and published in October 2004 having been set up by the Commercial Court Users’ Committee to “to investigate, and make recommendations as to, the particular problems thrown up by the disclosure of emails and other electronic documents and how the current Civil Procedure Rules and Commercial Court Guide on disclosure apply to electronic documents”.

The report was a response to issues being faced at the time, some of which are raised in this contemporaneous article published by Legal Week.

The Cresswell Report makes for interesting reading and many of the points discussed remain relevant in today’s world of disclosure. The report made a number of recommendations, which led to the addition of paragraphs 2A.1 – 2A.5 into CPR Part 31 in 2005. These additional paragraphs can be found in this copy of CPR 31.

When Practice Direction 31B was introduced in 2010 the original Practice Direction 31 (including the above paragraph 2A) was replaced with Practice Direction 31A, which contains a simplified version of paragraph 2A.

The focus of the additional paragraphs under CPR Part 31.2A is to

  • Clarify that “document” expands to electronic documents and seeks to clarify this further. Specifically the definition may include “deleted” documents and is clear that the definition extends to cover metadata.
  • Explain that prior to the first Case Management Conference parties should discuss any potential issues with regard to preservation of data and performing searches.
  • State that parties should seek to reach agreement at an early stage as to how electronic documents should be produced.
  • List the factors that may be relevant to the reasonableness of search for electronic documents, echoing CPR Part 31.7 – namely:
    • The number of documents
    • The nature and complexity of proceedings
    • The ease and expense of retrieval for any particular document
    • The significance of a document which is likely to be located
  • Discuss the reasonableness of keywords to identify documents and state that other forms of search may be appropriate in particular circumstances. Specifically, keyword searches should be “agreed as far as possible between the parties”.

Coming Up

The last point above, with regard to keyword searches being agreed between the parties, became a key point in one of the most referenced cases regarding electronic disclosure in England and Wales – the Digicel v Cable and Wireless case, which I will cover in Part Four.

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