InContext January 2008

The hitchhiker's guide to e-disclosure

Our advice is: "Don't panic"

There may not actually be a Vogon constructor fleet out there but 'e-disclosure' (or 'e-discovery' as our US cousins refer to it) is certainly on the horizon. In this article, we take a look at what e-disclosure is, what it isn't, and how to prepare for it.

First, a bit about disclosure
Disclosure in the legal sense is certainly nothing new but its scope has changed substantially over the years.  In the early 1980s, disclosure simply referred to the production of any unused material (that is to say material which the prosecution was not going to use) to the defence.

Following a number of miscarriage of justice cases, a broader definition of disclosure was introduced in 1996 including Lord Goldsmith’s (then HM Attorney General) so-called ‘golden rule’ which stated that “fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.” The obligation for full disclosure also exists in the Civil Procedure Rules (1999) that govern the civil courts of England and Wales.

Clearly full disclosure is a two way street: either side may provide material that subsequently weakens its case but a failure to disclose could have the same effect by omitting important supporting evidence.

E-disclosure versus ‘traditional’ disclosure?
In spirit, there is no difference between e-disclosure and disclosure: both require the collection, preparation, review and distribution of documents associated with a specific litigation. However, it is the ‘e’ which separates them that substantially increases the complexity of the disclosure obligation.

Electronically Stored Information, or ESI, can include any ‘document’ that has been recorded electronically including databases, word processing files, CDs, spreadsheets, emails, SMS, voice mail, online chat and even telephone calls made using the increasingly popular Voice over IP (VoIP) systems. Unlike paper-based files, ESI is virtual and therefore has many file formats and facets: the associated metadata can detail how the ESI has been compiled over time including authors, creation date, modification dates, versioning, keywords plus other user-generated metadata. From an evidential perspective, the metadata is very important as it shows the chain of custody of the ESI i.e. those individuals who had control of, or input to, specific content and those that viewed it.

According to Kate Matthews, Partner at UK law firm, Shadbolt & Co LLP “The metadata of materials is extremely important to the legal process: what we see or don’t see in the metadata is going to be as important as what we do see on the face of the document.”

Your obligation to disclose
E-disclosure is relevant to any organisation, governmental or private, that is involved in, or expects to be involved in, some form of litigation. The dispute or, importantly, the anticipation of a dispute that may lead to a legal proceeding has an important impact on any retention and destruction policies you may have in place.

For example, you may have a retention policy for emails of three months from the date of sending after which they are routinely destroyed. Now imagine an ex-member of staff disputing the nature of their termination of employment and seeking compensation for unfair dismissal. As part of the legal proceedings, their solicitor requests all relevant emails going back two years from the date of termination. You are unable to comply as you have only retained the past three month’s worth of emails which do not include any of those that fall within two year period. Would court sanctions be imposed on your organisation as a result of non-compliance? Well, that depends on whether it can be shown that someone in your organisation anticipated this dispute. If they did, you had a duty to preserve all relevant documents (also known as ‘litigation hold’ in the US) by suspending your email retention/destruction policy. If litigation was not expected (or is not in progress) and your retention policy is well documented and in place prior to any anticipation of litigation, then you at least have a defensible position for your failute to disclosure material relevant to the case.

Court sanctions are an obvious consequence of failing to disclose relevant material without there being any mitigating circumstances or a formal retention policy in place that would preclude disclosure.  However, the consequences of this situation may be greater: the deleted emails in the example above which should have been preserved may have contained information that would be detrimental to the employee’s case and so strengthened your position...

So what should you do about e-disclosure?
The more risk-adverse amongst us may conclude that it’s worth keeping all ESI in e-disclosure readiness for an, as-yet, unthreatened litigation, however, this is nearly always impractical.

A more logical first step to preparing your organisation for e-disclosure would be to publish (and therefore make defensible) a set of policies on retention and preservation of ESI which are to be acted upon in the face of potential litigation. Obviously e-disclosure reaches across the organisation and touches on many different functional responsibilities so it’s prudent to get a multi-disciplinary team together to review and develop these processes including representatives from IT, legal (in-house and external), records management and compliance.

The second step should be to consider reducing the potentially high cost associated with e-disclosure should it arise. This can be the cost due to the process of identifying which ESI is relevant and then retrieving it.  It can also include the cost from legal sanctions imposed from a failure to disclose the requested ESI in time – a situation which may result in the loss of the case itself.

Significant e-disclosure cost-reduction can be achieved by implementing an Electronic Document and Records Management System (EDRMS), such as TRIM Context.  Such a system will enable you to contextually manage unstructured ESI and contextually and collectively schedule its retention and management – the foundation for a sound e-disclosure strategy – it also has the added benefit of introducing overall improvements in workflow and business efficiencies.

If you’re looking at mitigating the risks associated with potential litigation for the first time, the whole topic of e-disclosure can be a daunting so here’s some sound advice:

“The first thing I say to our clients is don’t panic!” advises Kate Matthews, Partner at UK law firm, Shadbolt & Co LLP. “Secondly, get to know your processes and systems. There is no right or wrong here and even if you don’t have these in place, that’s fine, but you need to know what’s there and its limitations.” she continues. “Finally, don’t dabble with e-disclosure or you will come unstuck and cause more agony in the long term: unintentional tampering of evidence or accidental deletion of files are obvious risks. One can’t be a specialist in all areas and preparation for e-disclosure can’t be developed in a piecemeal fashion. I would recommend getting in-house and external experts to help devise your e-disclosure strategy.”

Back to InContext January 2008

Disclaimer
The information contained in this article are the views of the author and do not necessarily represent those of TOWER Software. TOWER Software accepts no liability for its accuracy or completeness or for any reliance placed by any person or organisation on the information provided.  If you are unsure of any aspect of the information provided and how it relates to your organisation or situation, you should seek legal advice.