His Honour Judge Brown QC has urged judges and practitioners to undergo training on electronic disclosure (e-disclosure) to avoid potential costly mistakes.
Speaking in Sydney to the Ark Group Australia International Conference last week, Judge Brown outlined the future of e-disclosure. Judge Brown said the Jackson report on civil litigation costs reminded judges of their duty to “actively manage” cases including the “direction and control of disclosure to ensure it does not get out of hand”.
Two recent cases have revealed the expense of making mistakes with e-disclosure, Digicel (St Lucia) v Cable & Wireless [2008] EWHC 2522 (Ch) and Earles v Barclays Bank plc [2009] EWHC 2500 (Mercantile).
In ‘Digicel’, the defendants spent more than £2 million on electronic searches, but the judge ordered that these be re-done using different keywords.
In ‘Earles’, the judge found that neither of the parties had given proper disclosure and consequently neither party had taken steps to preserve potentially relevant phone or email records. The court found that the conduct of e-disclosure by the bank had fallen below expected standards and took this into account when allocating costs.
Judge Brown said the ‘Earles’ case “stresses the vital importance of e-disclosure in modern civil litigation where almost everyone is unwittingly recording everything they do or say on ESI devices such as mobile phones and computers.
“It exposes serious flaws in the understanding and practices of lawyers, even in blue chip firms and companies, of what is required in electronic disclosure and the lack of data control, retention and readiness strategies in even the largest most sophisticated organizations where electronic records are a modern way of business life. It also demonstrates that the current Practice Direction on electronic disclosure is barely adequate and does not provide sufficient guidance to civil litigation lawyers with e-phobia.”
The Rule Committee is due to produce a new e-disclosure Practice Direction and Questionnaire in October. A costs budgeting pilot, which includes requirements to budget for e-disclosure, is currently taking place at the specialist courts at Birmingham Civil Justice Centre, where Judge Brown is a specialist mercantile judge.
