We at last have a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. You do not need case law to validate a clear rule, but Digicel (St Lucia) Ltd v Cable & Wireless has wider implications than its facts suggest, if only in terms of spreading awareness of the rules.
I was once discussing with the US General Counsel of a multinational company the points which distinguish the CPR requirements on disclosure from those of the US Federal Rules of Civil Procedure. The specific subject was the scope of the search which is required, and I was explaining that our obligations under Rule 31.7 CPR were defined by broad notions of proportionality for which the rules provided a set of factors, whose weight was ultimately a matter for the court’s discretion if the parties could not agree.
“What is the case law on that?” he said. “I need to know the case law”. He became quite aggressive at what appeared to him to be my ignorance when I said that there was none. This reaction is unsurprising, perhaps. The FRCP Amendments of December 2006 have spawned an immense number of decisions and Opinions, and US attorneys can find a case to back or undermine almost any proposition.
Not so here. Case management decisions, including those as to the scope of disclosure, are made every day, but few are appealed or reported. There is good reason for this. The rules relating to disclosure are themselves pretty clear, so that anyone who actually reads the definition of a disclosable document (which is not, it seems, everyone), or who stumbles over the Practice Direction to Part 31 (almost no-one, it appears) can be in much doubt as to what the bare words mean. It is hard to overturn an exercise of discretion by the judge who hears the application in respect of those aspects which involve weighing the elements of proportionality. Having got that far (and it is to be assumed that anyone actually quarrelling over the rules will have read them) each case turns on facts more or less peculiar to itself, and few points of general principle ever get beyond the court in which they are disputed.
The result is that the rules, and certainly the Practice Direction, slumber in obscurity, unused by anyone who does not have a sharp motive for studying them. That is a pity, because if they were used more pro-actively and as part of every litigator’s armoury, much of the time and expense of disclosure could be saved. Many more cases warrant an early analysis as to what is produced and what the powers are to increase the scope, to narrow it or, as in this case, to initiate an informed debate as to the cost against value of any particular source.
Those of us with an interest in this subject therefore regret that there is so little case law, not because anything in particular needs clarifying, but because the rules deserve more attention from parties and judges alike. Like twitchers on the watch for some rare bird, we keep each other informed about developments. If that sounds sad, it probably is.
Sadder still is that I was spending Saturday morning writing up my notes for a talk I am giving on Monday on the subject of e-disclosure. This is my third such talk in the nine days since I got back from Sydney and the US and I ran out of time in the week. This one was an update to the two hour session I do for the Law Society and in law firms. I was on the section which talks about the duty of search. The primary source is Part 31.7 CPR with, for those who know where to find it, an amplification in paragraph 2A.4 of the Practice Direction. There is not, frankly, much to say about it beyond a recitation of the rules and the suggestion (which the rules themselves require – 2A.2 of the PD) that the parties discuss any difficulties which arise, and I was about to move to the next slide when an e-mail arrived from Vince Neicho at Allen & Overy with a brief report of a case on that very subject.
The case is Digicel (St Lucia) Ltd and other companies v Cable and Wireless plc and other companies  All ER (D) 226 (Oct) and the report is of an order of Morgan J of 23 October. I do, as it happens, recognise the facts from something I was asked about some months ago, but I had heard no more until now.
The point at issue was the back-up tapes containing the e-mail accounts of certain former employees of the defendant. Standard disclosure had been given, and the claimant’s application under Rule 31.12 CPR for specific disclosure must have reflected one of three things – either the defendants’ disclosure statement had disclosed the existence of the tapes but asserted that it was not reasonable to search through them (a perfectly proper approach in principle) or the claimants had expected to find these accounts anyway, or they had been tipped off about them by something else found in the material which was disclosed. Whatever the trigger, Rule 3.12 is the way to go.
This is an aside, but the recital of the issues begins with this, to me rather curious, sentence:
“…whether, following a comparison of the steps taken by the claimants with the steps taken by the defendants, the defendants had, pursuant to CPR 31.7, carried out a reasonable search for electronic documents and whether they should be required to take further steps”.
There may be something peculiar about this case, but I do not see as a point of general principle that the steps taken by one party have very much bearing on what should be expected of another. Each party giving disclosure has a set of duties which are no less absolute for having a proportionality element in them. Parties may, of course agree a set of criteria which reflects mutuality, and one party who, in a contentious situation, has not performed his own disclosure properly may find it hard to cast stones at the other. The fact, however, that Party A has made a particularly conscientious job of it cannot, on that ground alone, require Party B to go to the same lengths. I suspect that the premise as to comparative efforts was not the part of the application which won it for the claimants.
The defendants opposed the application on two grounds, neither of which appear, from the brief summary I have, to comprise a simple assertion that the task was not worth doing. That, as appears later, was part of the problem, but not one of the main grounds of opposition.
They said first that the question of what was ‘a reasonable search’ had to be decided in the first instance by the solicitor in charge of the disclosure process, and that when a court was asked to review that decision, it should reach a conclusion different from the solicitor’s conclusion only where that decision was outside the band of permissible reasonable decisions. Their alternative position was that the court should adopt the approach of an appellate court reviewing an exercise of discretion.
The claimants said simply that the court should have regard to all the circumstances, which included the factors identified in Rule 31.7, and in Para 2A.4 of the PD, and that the court should make up its own mind as to what was required by way of a reasonable search.
The latter approach has the obvious merit of reflecting what the rules say. It is obviously right to say that the solicitor giving disclosure must make up his own mind, with the help of the rules, as to what is a) disclosable and b) worth the cost of extraction, using the disclosure statement to explain why he thinks it that b) is a smaller set than a) – this is why I drew attention to the disclosure statement above. If the receiving party thinks otherwise, Rule 31.12 allows him to ask the court to weigh the arguments as to the statutory factors – a cost versus value exercise using the same factors as the giving party ought to have in mind in arriving at his disclosure list.
The court took this straightforward line and held that the task of deciding what was a “reasonable search” was one which fell on the court, and that by omitting to search for the specified e-mail accounts, the defendants had not carried out a reasonable search.
That much really adds nothing to the rules, and the case would barely be worth reporting if that was all it decided. What was more interesting is what the court actually ordered the parties to do. Apart from the defendants’ imaginative approach to interpretation, there was no certainty as to how easy or difficult it would be to get at all the data on the tapes and as to what the costs would be – they might be “utterly prohibitive”.
The parties were ordered to meet to discuss how best the restoration might be done, the meeting to be followed by restoration from the tapes as soon as was reasonably practicable.
If one resists the temptation to read too much into the defendants’ motivation here, there is plenty of scope in the rules (in 31.7 CPR and Para 2A.4) to argue that the expense does not warrant the task. That, however, should not normally rely on bare assertion. It does not cost very much to get an expert opinion on what it would cost to handle tapes of this kind, nor to get a listing of what they, or a sample of them, contains. It seems to be implicit in the defendants’ position that it was at least arguable that the tapes might contain something which was disclosable.
Paragraph 2A.2 of the Practice Direction imposes an express obligation on parties to discuss their respective electronic sources and to take any difficulties to the judge, preferably before the first Case Management Conference. That implies exactly the kind of analysis and costs estimates as I refer to above. We hope shortly to have a Technology Questionnaire which will require parties to identify their sources rather earlier and thus provide the raw material for exactly the kind of discussion which was the upshot of the (presumably rather expensive) application.
This case makes no new law nor, frankly, does it do anything much to clarify a set of rules which are perfectly clear in principle anyway. The broad discretionary element which is always implicit when the words “reasonable” and “proportionate” are involved is rarely going to be firmed up by any one case – that is the whole point, and merit, of a flexible framework such as the CPR provides, in this area at least.
What this case may do is draw attention to a few things which have been neglected – the value of a disclosure statement used beyond the mere tick-box approach which its form (in the Practice Direction) unfortunately encourages, and the requirement to discuss sources in Paragraph 2A.2 of the Practice Direction.
These were two big and skilled firms acting for major clients in what I assume to be a high-value case, with two counsel on each side. You do not have to be in that league to avail yourself of the powers of the court to decide on the scope of disclosure. Such an application does not have to be expensive – it can be swept up at the CMC if you are ready for it – and its outcome can have a significant effect not just on the evidence which you feel is needed but on the downstream costs of the fight.