I was interviewed last week by one of the big computer magazines about the ever more ubiquitous Sharepoint – Microsoft Office SharePoint Server (MOSS) to give it its full name. The context, unsurprisingly given my own area of practice, was the implications for SharePoint users of the need to produce documents and data from SharePoint to meet the demands of litigation or of regulators.

It is some time since I used SharePoint. My experience, however, is enough to tell me that it is superb at ingesting and distributing information, and substantially less so for finding it and getting it out again.

I do not mean, of course that you cannot find material in SharePoint – that is very much part of its function. Its indexing and retrieval tools, however, are geared to its primary function of production, sharing and distribution of information about set topics, often across multiple servers and jurisdictions. The very ease with which data can be distributed widely militates against the strict control which is expected – or which ought to be expected – of a document retention policy and all the other ideals of information governance within organisations.

My context does not require me to analyse this in depth nor to provide a critique either of SharePoint’s strengths as a production medium or its defects as a governance tool. Its ubiquity speaks as to the former. The latter is spoken for by the fact that Autonomy has developed a new application – Autonomy ControlPoint – which tackles the governance and retrieval issues. Its press release of 20 October includes a link to a paper which succinctly explains what SharePoint’s deficiencies are when it becomes necessary to find – and to be absolutely certain that you have found – every last document needed for litigation or a regulatory investigation.

I can take this as a given for my context. What I was interviewed about was what the English courts expect of a party giving disclosure of any documents required to be disclosed for litigation. The rules are fairly straightforward – a “document” is anything on which information of any description is recorded (Rule 31.4 of the Rules of Civil Procedure (CPR). Standard disclosure is required of any document which supports or is adverse to the case of the disclosing party or any other party (Rule 31.6 CPR). A search for documents must be “reasonable” (Rule 31.7 CPR) and an order may be made for specific disclosure of other classes of documents (Rule 31.12 CPR.

If an organisation’s SharePoint servers may have in them information which is caught by the definition and rules, it is necessary either to produce it or to say why it is disproportionate to search for it. It is no different in kind from the backup tapes which were the subject of the recent judgment in Digicel (St Lucia) v Cable & Wireless (discussed in Case law at last on scope of reasonable search). It may, of course, be different in one critical respect – backup tapes are generally made pursuant to a policy and by a defined group of people, whereas the nature of a SharePoint server is that any authorised user may add information to it at any time. Furthermore, this is live data, not merely a copy. If backup tapes cause the kinds of issues which arose in Digicel, what problems may arise from SharePoint?

I have been speaking and writing a lot recently about the responsibility of the various players – clients, lawyer and judges – for the efficient retention, production and exchange of litigation documents. My article about Lord Justice Jackson’s inquiry into the costs of litigation concluded by stressing that whilst rules may be changed and lawyers made to control the costs of electronic disclosure, the primary duty (primary in the sense that this is where the documents problem begins) lies with the clients to deliver to their lawyers a set of documents which is simultaneously comprehensive and organised. By “comprehensive” I mean that it includes everything which may be disclosable under Rule 31.6 CPR. By “organised” I mean at the least that the obviously irrelevant has been removed.

If, as a party to litigation, you produce to your own lawyers a set of documents which is less than comprehensive, then you are in breach of your disclosure obligations. If you produce a set which is not organised, you can hardly complain if your lawyer’s first bill is rather large – he or she is having to do at lawyer rates and in a hurry what you the client might have done at relative leisure and at a lower cost.

SharePoint therefore provides a copybook example, writ large, of what clients can do to exacerbate – or control – the problem. The selection of a new means of creating and distributing information is conventionally driven by a business case which weighs the commercial advantage of having the application against the cost of buying and implementing it. The expression “information governance” implies that a third factor must be taken into account – how do you regulate the information so that you can get it out again efficiently if you have to – as you may have to for litigation or regulatory purposes?

The US Federal Rules of Civil Procedure place an express duty on companies to be able to comply with discovery requests. We do not have an equivalent in the UK beyond those few heads of documents which are required under specific statutes, such as tax documents. It is a matter of risk assessment by companies as to what they do to anticipate demands for documents – if litigation is likely or, perhaps more critically, if you are subject to regulatory control, then the risk (of incurring significant expense, of being unable to bring or defend proceedings economically, or of being in the wrong vis-à-vis a regulator) is correspondingly higher.

It is perfectly legitimate for a board of directors (and these are board level decisions we are taking about) to take the view, on an informed basis, that the potential risk does not warrant an investment in pre-emptive technology, systems and processes. The key words are “on an informed basis”. If you allow the subject to be shunted to a future agenda because it is deemed too big to deal with now then, frankly, you deserve all you get when litigation arises.

When a judge weighs up what is a proportionate search scope for disclosure, he may well take the view that old backup tapes, made without reasonable anticipation of possible litigation, and reasonably estimated to contain nothing of value in the proceedings, should not be restored. He is likely to take a different view about the costs of extracting information from a live system, used daily to run the project or whatever is the subject of the litigation. In a climate in which the costs of litigation are coming under scrutiny, a party who has committed data to a system from which identification and extraction of potentially disclosable document is difficult or expensive is unlikely to find a sympathetic judicial ear when he complains that the costs are disproportionate.

Contact Autonomy in the UK: Glenn Perachio gperachio@zantaz.com

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