The inclusion of electronic documents in the process of edisclosure introduces an additional layer of complexity, so much so that there is an entire Practice Direction (31B) dedicated to it, for more information visit our site www.cclgroupltd.com

1. Internal Vs Outsourced E-Disclosure
If documents only ever existed in hard copy form, the whole process of electronic
disclosure would be much simpler. There is no definitive list of what constitutes a
document and the definition is broad for a reason. Within the last decade technological
innovation has exploded; as a result, the way in which information is stored is fluid and
constantly changing. This is one of the main challenges when identifying relevant
documents for disclosure.
The inclusion of electronic documents in the process of edisclosure introduces an
additional layer of complexity, so much so that there is an entire Practice Direction (31B)
dedicated to it. To be clear, at no point in Part 31 or PD31B does it state that a third
party should be instructed to assist with this process? If a party feels that it is able to
satisfy the requirements of a reasonable search and the five principles of PD31B, this is a
totally valid approach. The five principles are:
1. Electronic Documents should be managed efficiently in order to minimise 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;
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.
The difficulties that will be faced by most parties in attempting to undertake their own e-
disclosure exercise is in handling and searching large volumes of data in a controlled
manner. A common approach is to instruct each custodian to search their own data and
provide a copy of responsive files. Consider that a group of custodians each searching
their data will all do so in their own way, each making their own decisions on what is and
is not relevant, and it is easy to see how documents can be overlooked.
Client-led e-disclosure can be a simple and cost-effective way of disclosing electronic
documents, but clients should be aware of the risks of failing to provide adequate
disclosure. In Earls v Barclays Bank Plc [2009] EWHC 2500, adverse costs orders were
made against a party who failed to search and disclose relevant documents. We often
say to our clients that instructing a third party should be considered in cases where:
 There exists significant volumes of electronic documents
 There exists significant disparate sources of electronic documents
 The electronic documents to be disclosed are material to the case;
 The absence of electronic documents may be material to the case.
The UK’s leading supplier of electronic disclosure and digital forensics consultancy
includes: computer forensics, mobile phone forensics and digital investigation services.
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