Searching for documents does not create them

There is a good article on Practical Law’s construction blog by James Clarke, a solicitor at Pinsent Masons. Called Is the ESI questionnaire the future of case management?, it is generally supportive of what is now called the Electronic Documents Questionnaire, and gives a good explanation of the reasons why those of us who drafted it felt that it was necessary.

There are a couple of points towards the end, however, which have not, I suspect, come out quite as the author intended. I cannot let them pass without comment because they might otherwise serve to feed some misconceptions which bedevil any explanation of the subject. My purpose is clarification not contradiction.

The first such sentence reads as follows:

Before committing to the questionnaire at an early stage, your client needs to realise that it could commit them to search terms and sources of electronic documents resulting in a disproportionately large number of documents to review – at significant cost.

We know from the rest of the article that its author well appreciates the value of early identification of electronic sources. This sentence, however, appears to imply (indeed, says in terms) that completing the questionnaire could lead to many documents being found. Well, if the documents exist, then we need to know about them, don’t we? The alternative is relief that the documents lay undisturbed, which seems to me to fly somewhat in the face of the primary disclosure obligations. Furthermore, the fact that you have found them does not mean that you have to disclose them, still less review them – see Master Whitaker’s judgment in Goodale v Ministry of Justice, referred to approvingly by the article’s author. If you end up reviewing everything you find, then you have almost certainly been in breach of the disclosure rules, to say nothing of the overriding objective.

The real point of the Electronic Documents Questionnaire is to encourage early identification with a view to exactly the opposite effect from that anticipated in the sentence which I quote. Until you know what you have got, and what the costs and other implications are of retrieving them, you cannot begin to assess what is proportionate. Armed with that information, you can begin sensible discussions as to which of the document sources are worth extracting – that is the point of the scope of the provisions in Rule 31.7 and of its expansion in the existing Practice Direction to Part 31.

It may well be that the litigation proceeds quite happily without consideration of all the documents and, in many cases, no harm is done to justice. The problems arise when the documents turn up at a late stage, either because the giving party stumbles upon them (and we have had a few expensive cases like that recently) or because another party flushes them out (as happened in the recent Qatari litigation).

In those circumstances, the original failure to produce the documents has multiple possible effects: the documents may change the evidential balance one way or another; considerable costs may be incurred which were not budgeted for and therefore did not feature in any proportionality assessment; those costs may include indemnity costs payable to other parties; not least, there may be considerable embarrassment – ask the little chap from OFSTED who found documents in his My Documents folder just before judgment, or the army officer whose evidence was condemned as unreliable in the Al-Sweady case, what it feels like to see your name preserved for ever in a judgment as someone who could not find his bottom with both hands – and that would be a charitable conclusion in respect of the army officer.

The electronic documents questionnaire does not invent documents; it encourages parties to find them and to make proportionate decisions about them which may include a consensual conclusion that they are not worth looking at, at least for now.

The other sentence in the article which I challenge is this one:

We also all know that issues change during litigation and using the questionnaire early may mean efforts based on certain key issues are wasted if  the issues change.

Sorry? The premise – that issues change – is obviously correct, but the obligation to give disclosure crystallises in the first instance at a given point in the litigation, and at a relatively early stage, and is a continuing duty thereafter. Anything which is not in issue falls outside the scope of the questionnaire and may have to be brought in later if the issues are widened. Anything which is in issue at the time of the case management conference (which may serve, of course, to help define what those issues are) is the proper subject of disclosure and therefore of the questionnaire which, in time terms, precedes the CMC by only a relatively short time.  Completion of the questionnaire should not add to the burden which must inevitably follow anyway from a change in issues, whether the change is the addition or the removal of issues.

If I seem sensitive on these points (which are probably, as I have said, no more than matters of phrasing in the article in question) it is because we come across any amount of false logic in this context. The documents exist; they must be identified, and not just for the formal purposes of the litigation. The fact that this may not be easy is a feature of the case, not a product of the rules, existing or pending.  The new skills which are required include developing the ability to do this quickly and cost-effectively and to make (and persuade others to make) decisions which are proportionate to the case.  Nothing about the questionnaire ought to increase existing duties or burdens. What it should do is point up the value of being informed. Anyone who uses this questionnaire as an excuse to plod expensively through work which would not otherwise have been necessary is misusing it.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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