DISCLOSURE OF ELECTRONIC DOCUMENTS – THE NEW REGIME

It is important for businesses to be aware of the extent to which they could be required to disclose electronic documents. All parties to litigation conducted under the jurisdiction of the Courts of England and Wales are compelled to disclose and allow inspection of documents which either support or diminish their case. In addition, any business holding personal information about an individual could be required to disclose such information to the individual in response to a subject access request under the Data Protection Act 1998 (the “DPA”).Disclosure of electronic documents and copies most obviously, and importantly, includes emails but also extends to encompass text messages, audio and visual recordings and information held on computer hard drives, mail servers and back-up systems, electronic diaries, computer disks, portable devices such as PDAs and memory sticks, as well as deleted data and metadata.

Business use of computers and their underlying IT systems creates a rapid and increasing volume of documents, and copies, that are likely to fall within disclosure obligations should a dispute arise. Documents are stored in different formats, often due to editing and transfer within the organisation and involving external parties as well as resulting from the creation of back-ups. Email leads to high paced exchanges which further escalate the number of documents. The increasing prevalence of social media in the workplace creates yet another potential source of documentation relevant to disputes.

A new regime forming part of the Court Rules requires parties to preserve disclosable documents as soon as litigation is contemplated. There is no guidance as to the meaning of “when litigation is contemplated” but a cautious approach should be adopted. Businesses should consider reviewing their document retention/destruction policy and ensure they are able to put a holding process in place. Documents destroyed when litigation is contemplated, even if done innocently, by mistake or in accordance with routine destruction policies, can cause the Court to draw adverse inferences about a case or in extreme cases penalise parties in costs or by strike out of all, or part, of their claim or defence.

The Court Rules encourage parties to be open in the disclosure of information, even if it could be considered commercially sensitive, and the Rules reinforce the fact that any information disclosed can only be used in the proceedings.

Subject access requests arise out of a separate area of law, but one which can arise in the context of commercial disputes as well as more general business dealings, particularly in relation to employees. Where businesses hold “personal data” on individuals (which includes all electronic records as well as certain paper records), those individuals can request information about how their data is being used and who it is disclosed to, copies of the data held, and details of the source of that data (subject to certain limited exceptions). A business responding to a subject access request is not permitted to make changes to information it finds in its records before disclosing it to the individual concerned (unless such changes would have been made regardless of the request).

It is therefore important for businesses and their employees to be aware of the circumstances in which electronic documentation may be disclosed. The informality of e-mail, in particular, may lead staff to “put pen to paper” in circumstances where they may not have intended to create a permanent document, creating difficulty later on when such casual communication forms part of a court case or employment tribunal proceedings. The new Court Rules highlight the importance of adequate internal data control procedures and the need to train staff appropriately on those procedures.

For more information or advice on the above, please contact Adam Sturt or Jessica Brickley.