Practice Directions

The Commercial and Admiralty Courts Electronic Disclosure

1. The disclosure of emails and other electronic documents throws up particular problems. They are discussed in a Report dated 6 October 2004 prepared by a Working Party of the Commercial Court Users Committee chaired by The Hon. Mr Justice Cresswell, which can be found on the Commercial Court Website under Commercial Court Reports.
   
2. The attention of all users of the Court is drawn to the fact that Section E of the Admiralty and Commercial Courts Guide has been revised in accordance with the recommendation of the Working Party. For ease of reference the new paragraphs E3.1A and E4.2A are reproduced below. This revision is effective immediately.
   
3. At paragraph 4.4 of its Report the Working Party recommends that the disclosure statement within the meaning of CPR Rule 31.10, the Annex to the Practice Direction supplementing Part 31 and the relevant practice form (N265) should be amended to make clear the extent to which a search has been carried out/has not been carried out to locate electronically held data. It is anticipated that amendments to the Rules may be made by the Rules Committee early in 2005.
   
4. The new paragraphs in Section E of the Admiralty and Commercial Courts Guide read as follows: -

   "E3.1A All parties should have regard to issues which may specifically arise concerning electronic data and documents:

   (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. In most cases metadata is unlikely to be relevant.

   (2)The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.

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(3)The parties should co-operate at an early stage as to the format in which electronic copy documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to a Judge for directions at the earliest practical date, if possible at the first Case Management Conference.

(4)The existence of electronic documents impacts upon the extent of the reasonable search required by Rule 31.7 for the purposes of standard disclosure. The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following:-

(a)The number of documents involved.

(b)The nature and complexity of the proceedings.

(c)The ease and expense of retrieval of any particular document. This includes:

(i)The accessibility of electronic documents or data including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents.

(ii)The location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents.

(iii)The likelihood of locating relevant data.

(iv)The cost of recovering any electronic documents.

(v)The cost of disclosing and providing inspection of any relevant electronic documents.

(vi)The likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection.

(d)The significance of any document which is likely to be located during the search.

It may be reasonable to search some or all of the parties' electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

E4.2AWhere an application is made for specific disclosure the party from whom disclosure is sought should provide to the applicant and to the Court information as to the factors listed in E3.1A(4) above and its documents retention policy, to the extent such information is relevant to the application. At the hearing of the application, the Court may take into account the factors listed in E3.1A(4) as well as the width of the request and the conduct of the parties."

26 November 2004