In-house counsel are under pressure to protect against e-disclosure slip-ups, says Deborah Blaxell
The imposition of sanctions for the mismanagement of electronically stored information (ESI) has been commonplace in the US for some time. Earles v Barclays Bank plc [2009] All ER (D) 179 (Oct) demonstrates that similar attitudes are beginning to transgress national boundaries.
Earles v Barclays Bank plc revolves around a relatively straightforward factual dispute:
l Whether the defendant bank received certain instructions from the claimant, a customer of the bank, either verbally, by telephone, or by computer.
l The claimant alleged that a number of funds transfers were made by the defendant in breach of mandate, and denied that certain alleged phone calls and e-mails took place.
His Honour Judge Simon Brown QC summarised that: “…The resolution of the primary issue appears beguilingly simple. Were telephone calls or e-mails made on each of the 5 occasions and, if so, what was said or written?”
The judge was content that, when conducting the disclosure exercise, the lawyers had acted in good faith
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