Overview of e-Discovery and ESI and its implications for amendments to civil procedure rules and the need for practice directions.

1. E - D I S C O V E R Y
A C A S E F O R A M E N D M E N T
T O C I V I L P R O C E D U R E
R U L E S ?
S E P T E M B E R 1 7 , 2 0 2 0
K E I S H A - A N N T H O M P S O N

2. Outline
1. What is e-Discovery
2. Electronically Stored Information (ESI)
3. e-Discovery Process ( EDRM, Rules in the USA, and UK)
4. e-Discovery Implications for the CPR selected Themes- Pre-CMC
Discussions (early cooperation), Documents, Orders
5. Implications for Attorneys

3. What is e-Discovery
• “eDiscovery” or “e-Disclosure” as its called in the UK, is short for
electronic discovery, which is defined as the process of discovery in
civil litigation that is carried out in electronic formats.” ~
https://www.aiim.org/ or simply,
• Discovery of Electronically Stored Information (ESI)

4. E S I
W H A T , W H E R E , S T O R A G E , I M P O R T A N C E , S C O P E

5. What is ESI
• ESI refers to information that is created, manipulated,
communicated or stored and best utilised in digital form requiring
the use of computer hardware or software.
• In what form and how is it stored?

6. What are the forms in which ESI is
produced?
ESI is produced as:
• Emails & voice mails
• IMs & text messages (the computer automatically logs and may
keep entire conversations)(e.g. yahoo messenger )
• Documents, spreadsheets, & databases
• File fragments & file metadata (system and document)
• Digital images & digital diagrams
• Video

7. Where is it stored ?
• Hard Disk Drives (HDD)
• Solid State Drives (SSD)
• Thumb drives or flash drives
• Optical Disks (e.g., CDs & DVDs)
• Hand-held devices (e.g., PDAs, phones, iPods, Kindle etc.) – Note BYOD
complication
• Game consoles
• Network storage (e.g., File servers, NAS, etc.)
• Apps (Zoom, Facebook, Microsoft Teams, Password keepers)
• Back-up tapes
• Cloud (iCloud, Dropbox, One Drive)

8. Why is E-Discovery Important?
(Why it is necessary to think about changes to Civil Procedure Rules)
“Virtually all evidence today is born digitally… and only a fraction takes forms we’ve traditionally
called documents.”
"We have entered a golden age of evidence, ushered in by the monumental growth of data. All who access
electronically stored information (ESI) and use digital devices generate and acquire vast volumes of
digital evidence. Never in the course of human history have we had so much probative evidence, and
never has that evidence been so objective and precise. Yet, lawyers are like farmers complaining of oil on
their property; they bemoan electronic evidence because they haven’t awoken to its value.
… As sources of digital evidence proliferate in the cloud, on mobile devices and tablets and within
the burgeoning Internet of Things, the gap between competent and incompetent counsel grows.
We suffer most when standard setters decline to define competence in ways that might exclude
them. Vague pronouncements of a duty to stay abreast of “relevant technology” are noble, but
do not help lawyers know what they must know.”
~ ”What Every Lawyer Should Know About E-Discovery” - Craig Ball

9. What the English Court has said…Earles v
Barclays Bank Plc [2009] EWHC 2500
• Judge Brown QC said in Earles at [21]:
“Since 2000 most key contemporaneous commercial documents are contained in
Electronically Stored Information [“ESI”] – today over 90% of communications are recorded
in that form – phone records, texts, e-mail, bank records etc. ESI are “documents” under
the Civil Procedure Rules: CPR 31.4 and 31PD.2A. Accordingly, the rules for “Standard
Disclosure” apply: CPR 31.6. i.e. “only” those documents that are “supportive” or “adverse”
to each party’s cases. The abundance of this ESI in cyberspace means that potential
litigants, in particular organisations such as Banks at the current time, need to
anticipate having to give disclosure of specifically relevant electronic documentation
and the means of doing so efficiently and effectively.…and at [41]…
an expert in information technology, either in house or a consultant, could easily have
been instructed to retrieve ESI from various back up sources one would have thought but
no such expert appear to have been instructed to do so. One expects a major high street
Bank in this day and age of electronic records and communication with an in house
litigation department to have an efficient and effective information management system
in place to provide identification, preservation, collection, processing, review, analysis and
production of its ESI in the disclosure process in litigation and regulation”

10. The Scope of ESI
• 1.7MB of data is created every second by every person during 2020.
• In the last two years alone, the astonishing 90% of the world’s data has
been created.
• 2.5 quintillion bytes of data are produced by humans every day.
• 463 exabytes of data will be generated each day by humans as of 2025.
• 95 million photos and videos are shared every day on Instagram.
• By the end of 2020, 44 zettabytes will make up the entire digital
universe.
• Every day, 306.4 billion emails are sent, and 5 million Tweets are made.

11. Data Volumes
Unit Value Example
Kilobytes (KB) 1,000 bytes a paragraph of a text document
Megabytes (MB) 1,000 Kilobytes a small novel
Gigabytes (GB) 1,000 Megabytes Beethoven’s 5th Symphony
Terabytes (TB) 1,000 Gigabytes all the X-rays in a large hospital
Petabytes (PB) 1,000 Terabytes
half the contents of all US
academic research libraries
Exabytes (EB) 1,000 Petabytes
about one fifth of the words
people have ever spoken
Zettabytes (ZB) 1,000 Exabytes
as much information as there are
grains of sand on all the world’s
beaches ( recall - By the end of
2020, 44 zettabytes will make up
the entire digital universe)
Yottabytes (YB) 1,000 Zettabytes
as much information as there are
atoms in 7,000 human bodies (
one human body contains seven
billion billion billion atoms)
• The volume of data in a single file or file system can be
described by a unit called a byte.
• Kilo- means 1,000; a Kilobyte is one thousand bytes.
• Mega- means 1,000,000; a Megabyte is a million bytes.
• Giga- means 1,000,000,000; a Gigabyte is a billion bytes.
• Tera- means 1,000,000,000,000; a Terabyte is a trillion
bytes.
• Peta- means 1,000,000,000,000,000; a Petabyte is 1,000
Terabytes.
• Exa- means 1,000,000,000,000,000,000; an Exabyte is 1,000
Petabytes.
• Zetta- means 1,000,000,000,000,000,000,000; a Zettabyte is
1,000 Exabytes (1 sextillion bytes and a trillion GB)
• Yotta- means 1,000,000,000,000,000,000,000,000; a
Yottabyte is 1,000 Zettabytes. ( 1000 x a trillion GB)
Credit: Roy Williams, Center for Advanced Computing Research at the California Institute of
Technology , from https://staff.eecis.udel.edu/

12. The Scale (Scope) of a Review
Source: Lexisnexis.com/discovery
Document Type Average Pages per
GB
Microsoft Word Files 64,782
Email Files 100,009
Microsoft Excel Files 165,791
Lotus 1-2-3 Files 297,317
Microsoft PowerPoint
Files
17,552
Text Files 677,963
Image Files 15,477
Cost to Review 15 GB of Emails
Email Pages/ GB Total Pages
15 GB of Emails 100,009.00 1,500,135.00
What will it cost to do the review?
Total Attorney hrs x Rate
Arriving at the total hours
Total Attorney Hours = A/B/C
Total Pages A 1,500,135.00
# Attorney on Team B 3
# pages per day C 30
Total Attorney Hours = A/B/C = 16,668.17
What is your hourly rate? X 16,668.17 hrs = Total cost to the
client

13. Will we encounter this in practice?
• Triumph Controls UK Ltd and another v Primus
International Holdings Co [2018] EWHC 176 (TCC) –
Justice Coulson
• Facts- C claimed breach of warranty for sale of shares in an
aerospace company, as D did not disclose all aspects of the
business, including operational failings.
• This judgement before Judge Colson was to settle
disclosure issues ( inadequate search, lack of
communication and agreement with the other side about
keywords, etc).
• The data on one shared drive was 3 Terabytes of data
(approx. 20 million documents, 860,000 folders or file
paths) ( basically all the X-rays in 3 large hospitals)
• The asked the custodians to determine what were relevant
documents without consulting the other side.
• The data was reduced to 1 TB.
• In respect of the folders and file paths it was determined
the approach was reasonable and proportionate as another
method only produced two additional file paths.
• In respect of the relevant documents however, the keyword
search and computer assisted review produced 45,000
documents, a sample of 230,000 were searched
documents of which they disclosed 16,000, as relevant.
• However, the claimants approach raised question marks for
the court about the adequacy of the search.
• The D did not indicate how the CAR was done, no details
were given and agreement arrived at with the other side. It
was unilateral.
• There was lack of detail on the sampling methodology.
• A further search revealed an additional 3,000 documents,
with the total disclosable being 19,500. The judge noted
that this was only 4.3% and based on that number of
documents this was a very small figure, so was
questionable.
• The additional search would cost US$ 18 million but
bearing in mind proportionality, the claim being for US $65
million , the court ordered that the search be redone-
sampling methodology agreed to manually review the
balance of documents (220, 000) and it was to be done in
three weeks.
• Reaffirmed disclosure principles ( refereed to Digicel St.
Lucia case and Practice Directions on e-disclosure ).

14. Earles v Barclays Bank Plc [2009] EWHC 2500
(Mercantile) (08 October 2009)
( more common case- loan default)
• In a case where Judge Brown
found that disclosure was
deficient- and the 'conduct' of
electronic disclosure by the Bank
and its lawyers fell far below the
standards to be expected of those
practicing in the civil courts
• He had a bundle of 500
documents
• But there were missing
documents
• Telephone records, back-up
tapes, transfer sheets and certain
Emails should have been
disclosed – so he would have had
much more evidence than the
bundle of 500 documents
-Because of the improper search the
result was that the successful Bank
was only given 50% of its cost
against the unsuccessful claimant .

15. E - D I S C O V E R Y
P R O C E S S

16. Significant consequences to doing e-
Discovery wrong !
• The consequences of getting it wrong are no longer hypothetical
- order for half costs in Earles’ case
-spending 18 million consequent on an order made to redo search in
Triumph.
• See also the case of West African Gas Pipeline Company Ltd v
Willbros Global Holdings Inc [2012] EWHC 396 (TCC), [2012] All ER
(D) 60 (May) in which a significant costs order was made against the
West African Gas Pipeline Company for failing to provide adequate
disclosure, in part due to mistakes made during its search for and
review of its own documents.

17. How do we manage this massive
undertaking correctly?
1. Recognise the scale of the issue and its implications.
2. Recognise that even when we get hard cop documents they
originated in digital form so there is probably additional questions
or additional requests that may be needed.
3. Follow the rules and protocols established for e-discovery
-adopt the e-Discovery Reference Model (EDRM)
- apply relevant rules

18. The E-Discovery
Reference Model
(EDRM)
1. Facilitates standardisation
of the process
2. Developed in 2005 by
George Socha Jr., founder of
St. Paul, Minn.-based Socha
Consulting LLC, and Tom
Gelbmann, managing
director of Gelbmann &
Associates in Roseville,
Minnesota.
3. Has nine (9) stages being the
e-discovery activities that
should take place in an
investigation.
4. All of these stages lead to
the final stage – The
Evidence (present to court/
jury)!

19. What the EDRM Stages mean
• Information Governance – Getting your electronic house in order to mitigate risk & expenses should e-
discovery become an issue, from initial creation of ESI (electronically stored information) through its final
disposition.
• Identification – Locating potential sources of ESI & determining its scope, breadth & depth.
• Preservation – Ensuring that ESI is protected against inappropriate alteration or destruction.
• Collection – Gathering ESI for further use in the e-discovery process (processing, review, etc.).
• Processing – Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review
& analysis.
• Review – Evaluating ESI for relevance & privilege.
• Analysis – Evaluating ESI for content & context, including key patterns, topics, people & discussion.
• Production – Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms.
• Presentation – Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native &
near-native forms, to elicit further information, validate existing facts or positions, or persuade an
audience.
Craig Ball – “A successful e-discovery model; one that vanquishes volume and enriches relevance”

20. Rules on e-Discovery in the USA
• On December 1, 2006, new amendments to the Federal Rules of Civil
Procedure governing the conduct of litigation in the United States federal
courts took effect .
• This was the culmination of more than five years of drafting, discussion
and public comment.
• The changes were captured in language inserted into six separate Federal
Rules -- 16, 26, 33, 34, 37 and 45 .
• These rules now guide lawyers and their clients on the implications of
litigating in the digital age.
• Amendments to the rule in 2015 to take account of proportionality
(among other things) – given the massive amount of data cost is a key
issue.

21. Rules on e-Discovery (e-disclosure) in the
UK
• The updated U.K. Rules of Civil Procedure (CPR) went into effect on April 1, 2013.
• E-Discovery is referred to as “e-disclosure” in the UK.
• The rules can be found in Part 31 of the UK Civil Procedure Rules
• Practice Direction 31-A – Disclosure and Inspection - Para. 2A.1 and 2A.2
Electronic disclosure
2A.1 Rule 31.4 contains a broad definition of a document. This extends to electronic documents,
including e-mail and other electronic communications, word processed documents and
databases. In addition to documents that are readily accessible from computer systems and
other electronic devices and media, the definition covers those documents that are stored on
servers and back-up systems and electronic documents that have been‘deleted’. It also extends
to additional information stored and associated with electronic documents known as metadata.
2A.2 Practice Direction 31B contains additional provisions in relation to the disclosure of
electronic documents in cases that are likely to be allocated to the multi-track.
• Practice Direction 31B – Disclosure and Inspection of Electronic Documents

22. I M P L I C A T I O N S F O R
T H E C P R - M A I N
T H E M E S
P R E - C M C D I S C U S S I O N S , D O C U M E N T S , O R D E R S
( P R O P O R T I O N A L I T Y )

23. E A R L Y D I S C U S S I O N
A N D C O O P E R A T I O N

24. Early Cooperation/ Discussion
• The process of discovery happens in Jamaica after the CMC and exchange of list
of documents (one of the orders made at the CMC).
• The implication is that this will be too late and critical ESI can be lost or missed
after the filing of the clam.
• US and UK rules and practice direction were amended to specifically deal with
ESI -In particular early discussion between the parties and exchange of specific
e-discovery questionnaire and that a hold be placed, so that ESI is preserved.
• The UK PD also call for parties to agree search parameters- keywords,
technology ( recall Triumph).
• What launched this ship?
• The need for this early discussion, cooperation and preservation was first
brought to light in the USA in the seminal case of Zubulake v. UBS Warburg LLC
- 220 F.R.D. 212 (S.D.N.Y. 2003)

25. Zubulake v. UBS Warburg LLC - 220 F.R.D. 212
(S.D.N.Y. 2003)
• Facts- Plaintiff employee, an equities trader, sued defendant employer alleging
gender discrimination, failure to promote, and retaliation. Plaintiff sought
sanctions against the employer for its failure to preserve the missing backup
tapes and deleted emails. She sought costs for the restoration of the backup
tapes, an adverse inference instruction, as well as costs for re-depositions.
• The court found that the duty to preserve the missing tapes arose when the
relevant people at the employer anticipated litigation, four months before
the employee filed her Equal Employment Opportunity Commission
charge. Because the employer was negligent, and possibly reckless, plaintiff
employee satisfied her burden with respect to the spoliation of the information.
In another case (V), the plaintiff did get an adverse inference instruction given
the failure to preserve the information.
RULE:
• The scope of a party's evidence preservation obligation can be described as
follows: once a party reasonably anticipates litigation, it must suspend its
routine document retention/destruction policy and put in place a litigation
hold to ensure the preservation of relevant documents.

26. Zubulake’s Aftermath
• After Zubulake (2003) the Report of the Civil Rules Advisory Committee, May
27, 2005; Fed. R. Civ. P. 26(f) (revised Dec. 1, 2006) was finalised.
• Many of the issues arising or potential “problems” identified were highlighted
in that case.
• The Committee reached consensus on two points:
1. Electronically stored information has important differences from
information recorded on paper. The most salient of these differences are
that electronically stored information is retained in exponentially greater
volume than hard-copy documents; electronically stored information is
dynamic, rather than static; and electronically stored information may be
incomprehensible when separated from the system that created it.
2. These differences were causing problems in discovery which required that
rule amendments.

27. Judicial thinking on the early cooperative
model
• “The volume and complexity of ESI demand cooperation as a practical matter.” https://e-
discoveryteamtraining.com/section-3/sec3modc/
• Judge Grimm has shown in Mancia v. Mayflower Textile Services Co. the rules governing discovery also
demand cooperation. The Sedona Conference pushed hard for for U.S. lawyers to adopt this new
paradigm in discovery.
“Further, it is in the interests of each of the parties to engage in this process cooperatively. For the
Defendants, doing so will almost certainly result in having to produce less discovery, at lower cost. For the
Plaintiffs, cooperation will almost certainly result in getting helpful information more quickly, and both
Plaintiffs and Defendants are better off if they can avoid the costs associated with the voluminous filings
submitted to the court in connection with this dispute… In fact, the cooperation that is necessary for this
process to take place enhances the legitimate goals of the adversary system, by facilitating discovery of the
facts needed to support the claims and defenses that have been raised, at a lesser cost, and expediting the
time when the case may be resolved on its merits, or settled. This clearly is advantageous to both Plaintiffs
and Defendants.”
~ MEMORANDUM OPINION, PAUL W. GRIMM, Chief United States Magistrate Judge.
• This is now enshrined in the UK rules and Practice Directions and the USA Federal Rules of civil procedure

28. What the English Rules Committee member
says …
• Masood Ahmed a member of the English Civil Procedure Rules
Committee noted the following:
“During the disclosure process, the courts will expect the parties to
reach an agreement from the outset on the process of disclosure (see
Digicel (St Lucia) Limited v Cable & Wireless Plc [2008] EWHC 2522
(Ch)). The importance of party cooperation and agreement and the
need to follow the necessary protocol and guides on e-disclosure was
recently reinforced by Mr Justice Coulson in Triumph Controls UK
Limited & Anor v Primus International Holding Co & Ors [2018]
EWHC 176 (TCC).”
In Practice: Legal update: civil procedure: E-disclosure and party agreement, (2018) LS Gaz, 12 Feb, 20

29. Part 31.5 UK CPR (New) – Early Disclosure
Procedures
• (3) Not less than 14 days before the first case management conference each party must file
and serve a report verified by a statement of truth, which –
(a) describes briefly what documents exist or may exist that are or may be relevant to the matters
in issue in the case;
(b) describes where and with whom those documents are or may be located;
(c) in the case of electronic documents, describes how those documents are stored;
(d) estimates the broad range of costs that could be involved in giving standard disclosure in the
case, including the costs of searching for and disclosing any electronically stored documents; and
(e) states which of the directions under paragraphs (7) or (8) are to be sought.
• (4) In cases where the Electronic Documents Questionnaire has been exchanged, the
Questionnaire should be filed with the report required by paragraph (3).
• (5) Not less than 7 days before the first case management conference, and on any other
occasion as the court may direct, the parties must, at a meeting or by telephone, discuss and
seek to agree a proposal in relation to disclosure that meets the overriding objective.

30. Relevance of Rules
• As we saw in Earle’s Case it is not enough for counsel to indicate that they were not
aware of CPR 31PD.2A2,
• Secondly, the Bank's litigation lawyers should have "discussed" with the Claimant well
"prior to the case management conference" the electronic disclosure of both phone
and e-mail records as expressly provided by CPR 31PD.2A2 .
• The Bank’s lawyers did not do this with the Claimant until two years later in August
2009 shortly before trial. This was far too late with the result that the witnesses and the
court have had to deal with a case with critical contemporaneous documents missing.
• This is contrary to the Overriding Objective of "ensuring" that the case is "dealt with
expeditiously and fairly.”
• Attorney will be liable for the consequences of ignorance and non-observance of rules
and practice directions ( Fletcher & Son v. Jubb, Booth & Helliwell [1920] 1 K.B. 275 at
page 280 quoted in Earles Case).
• It is worth repeating what was said in Woods v. Martins Bank Ltd [1959] 1 Q.B. 55 at 60,
where Salmon J. said "It cannot be too clearly understood that solicitors owe a duty to
the court, as officers of the court to make sure, as far as possible, that no relevant
documents have been omitted from their client's list".
• Can you escape liability even now without specific e-discovery rules for not conducting
a reasonable search or disclosing relevant documents?

31. What about ESI in the cloud
• ESI (US Civil procedure rules) – you must disclose what is in your possession, custody or control
• The notion of “control” here is similar to what is contained in our rules- they are or were in
your possession, you had a right of possession, you have a right to inspect or make copies.
• In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by
Microsoft – Appealed to the US Supreme Court ( US v Microsoft Corp) illustrates the complexity
of the issue when dealing with ESI.
• Facts - Federal Warrant issued for email of a particular account – Microsoft challenged as the
server was in Ireland and the law under which the warrant was issued at the time could not
have extraterritorial effect.
• So consider whether your client does have “control” over these documents to turn over for
discovery, say he stores all his/her files not on his hard drive but in dropbox or Icloud or One
Drive or its emails as in the Microsoft case?
• ESI there often has implications for third parties – the UK Civil procedure rules in Part 31
addresses specifically the issue of disclosure by third parties.
• Aside – Microsoft now has e-discovery option in its windows package (implications for better
information governance and ability to more easily implement holds so parties in Jamaica –
almost everyone has a windows system to implement some form litigation hold procedures to
preserve ESI etc and be able to undertake e-discovery according to the EDRM).

32. D O C U M E N T

33. Document
• Jamaica - CPR 28 (Disclosure and Inspection of Documents) defines a document in
Rule 28.1(2) as “anything on or in which information of any description is recorded; and "copy" in
relation to a document, means anything onto which information recorded in the document has
been copied, by whatever means and whether directly or indirectly.”
• UK Part 31.4 states
“In this Part –
‘document’ means anything in which information of any description is recorded; and
‘copy’, in relation to a document, means anything onto which information recorded in the
document has been copied, by whatever means and whether directly or indirectly.”
• Though similar, Part 31 UK in addition to electronic document, ESI is explicitly mentioned and
a specific electronic document questionnaire is mandated. Also Practice Direction 31B – deals
specifically with electronic documents.
• So that even though document can include electronic documents ESI is sufficiently different
and warrant explicit mention and two practice directions to address how to deal with it,
including importantly METADATA , system files, backup tapes, hash values, deleted files .

34. Metadata
• Data about the data
• Serves important evidential value – authenticates
• What if the rules do not specifically say it is a part of disclosure?
• Under our Rules Rule 28.19 covers the authenticity of the “document”
• It could be argued that when a a document is submitted- excel sheet, word document, PDF
document, JPEG image, email or facebook post there is the opportunity to request the
METADATA notice can be served to prove the authenticity
• Implications of this approach (Risk)
- Leaves too much to the Attorney’s technical knowledge
- Requires the filing of notice to prove authenticity of multiple “documents”
- Notice must be served 42 days before the trial (what happens during the time to trial if the trial
date is not until 2022 – Even if we could serve notice right after the CMC we have no rules to
impose a litigation hold or early discussion to even know what was destroyed before the claim
was filed)

35. Metadata under the UK Rules
• The UK rules on Civil Procedure dealing with Disclosure and Inspection- Part 31
is supplemented by Practice Direction 31 B, which explicitly addresses the issue
of Metadata:
• 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.
30. What we see therefore is that as a matter of course some data should be
provided, without the need to file notice to get it.

36. O R D E R S

37. Orders
• The types of orders will likely remain
- Standard disclosure
- Specific disclosure
- But will need more detailed orders
- Also a range of other possible orders – even before the CMC on
consequent or multiple CMC’s to deal with the disclosure issues
- More detailed Pre-Trial review orders dealing with presentation of
ESI at trial (very critical this could harm your case if not presented
properly before a jury or the court)

38. PART 31.5 “Disclosure”- (7) to (9) of the UK CPR
More options in respect to disclosure orders at the CMC
(7) At the first or any subsequent case management conference, the
court will decide, having regard to the overriding objective and
the need to limit disclosure to that which is necessary to deal
with the case justly, which of the following orders to make in
relation to disclosure –
(a) an order dispensing with disclosure;
(b) an order that a party disclose the documents on which it relies,
and at the same time request any specific disclosure it requires from
any other party;
(c) an order that directs, where practicable, the disclosure to be
given by each party on an issue by issue basis;
(d) an order that each party disclose any documents which it is
reasonable to suppose may contain information which enables that
party to advance its own case or to damage that of any other party,
or which leads to an enquiry which has either of those
consequences;
(e) an order that a party give standard disclosure;
(f) any other order in relation to disclosure that the court considers
appropriate.
(8) The court may at any point give directions as to how disclosure
is to be given, and in particular –
(a) what searches are to be undertaken, of where, for what, in
respect of which time periods and by whom and the extent of any
search for electronically stored documents;
(b) whether lists of documents are required;
(c) how and when the disclosure statement is to be given;
(d) in what format documents are to be disclosed (and whether any
identification is required);
(e) what is required in relation to documents that once existed but
no longer exist; and
(f) whether disclosure shall take place in stages.
(9) To the extent that the documents to be disclosed are electronic,
the provisions of Practice Direction 31B – Disclosure of Electronic
Documents will apply in addition to paragraphs (3) to (8).
The reality is the dealing with ESI requires more intense engagement and knowledge on the part of the
parties involved. See Part 31.5 (8) – searches (keywords, form for production, deleted documents)

39. Part 31.6 -Disclosure before proceedings start
(1) This rule applies where an application is made to the
court under any Act for disclosure before proceedings
have started1.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only
where–
(a) the respondent is likely to be a party to subsequent
proceedings;
(b) the applicant is also likely to be a party to those
proceedings;
(c) if proceedings had started, the respondent’s duty by
way of standard disclosure, set out in rule 31.6, would
extend to the documents or classes of documents of
which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is
desirable in order to –
(i) dispose fairly of the anticipated proceedings;
(ii) assist the dispute to be resolved without
proceedings; or
(iii) save costs.
(4) An order under this rule must –
(a) specify the documents or the classes of documents
which the respondent must disclose; and
(b) require him, when making disclosure, to specify any
of those documents –
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to
withhold inspection.
(5) Such an order may –
(a) require the respondent to indicate what has
happened to any documents which are no longer in his
control; and
(b) specify the time and place for disclosure and
inspection.
(Rule 78.26 contains rules in relation to the disclosure
and inspection of evidence arising out of mediation of
certain cross-border disputes.)

40. I M P L I C A T I O N S
F O R A T T O R N E Y S
R E P R E S E N T I N G C L I E N T C O M P E T E N T L Y

41. Implications for clients and Attorneys
• Greater obligation on parties to in particular businesses to ensure that they
have effective information governance procedures for dealing with ESI and in
particular its preservation when litigation is reasonably anticipated.
• “It seems unlikely that parties will henceforth get way with unsubstantiated
assertions that it was too difficult to comply with the document retention /
litigation readiness obligations necessary to bring or defend a claim.”
~Comment from Chris Dale on e-Disclosure / eDiscovery – see Earle’s Case,
Mancia v Mayflower.
• Also the fact that something is deleted does not stop there – you may not be
able to say it would too expensive to retrieve it depending on its importance to
the case.
• Courts will take a dim view of overbroad discovery.
• Greater demand for counsel to have greater technical knowledge, especially
without detailed rules or practice directions.

42. The Future
• It cannot be avoided if all the data is digital - Its is not only large
firms in developed countries that use the process. In Singapore the
Academy of Law indicates that over 80% of its firms have fewer than
5 lawyers and they advocated for e-discovery use –Software such as
Microsoft have e-discovery mechanisms built in which suggests it
would be possible to implement certain EDRM stages now for any
size company or regular individuals – less likely that client can
claim the information is no longer in their possession (
proportionality).
• Specialised e-discovery software and vendors available. But lawyers
must understand the IT – need training on e-discovery built into the
CLPD programme.
• E-discovery as part of the curriculum of the Law School.

43. T H E E N D
T H A N K Y O U !
K E I S H A T H O M P S O N @ G M A I L . C O M