In Gavin Goodale v The Ministry of Justice, Queen’s Bench Senior Master Whitaker dealt with exactly this problem.

The Senior Master ordered the defendants to make a reasonable search for documents, including documents contained in electronically stored information. In so doing, he required them to complete the draft e-disclosure questionnaire which is presently being considered (together with a draft practice direction on e-disclosure by the Civil Procedure Rules Committee (CPRC). The completed questionnaire would provide the claimants and the court with the necessary information in a structured manner, regarding any issues that might arise in relation to searches for electronic documents. This is the first known case in which the draft e-disclosure questionnaire has been used as a tool in case management. The Master attached the questionnaire in a schedule to the judgment, even though it has not been finalised and approved by the CPRC.

The general rule for standard disclosure under CPR31.6 requires a party to disclose the documents on which he relies, the documents which adversely affect his own case or adversely affect another’s party’[s case or support another party’s case and documents which he is required to disclose by a relevant practice direction. CPR31.7 requires a party to make a reasonable search search for these documents. What constitutes a reasonable search is fact-specific. There are additional factors to bear in mind when scoping and conducting a reasonable search for electronic documents, set out in Practice Direction PD 31.2A.

Electronic documents include email and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devises and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been “deleted”. It also extends to additional information stored and associated with electronic documents known as metadata.

Parties to litigation should from the outset discuss any issues that may arise regarding searches for and the preservation of electronic documents. This can involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devises and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. Where there is disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.

The Senior Master’s judgment also provides a number of useful reminders as to the general approach which should be taken when dealing with e-disclosure. In particular, he emphasised the importance of taking a staged approach to avoid running up unnecessary and disproportionate costs and explains how this can be done.. The judgment is useful for a number of reminders that are highly relevant to the general approach to disclosure of electronically stored documents. Since every case is different, you should take specific advice on each search as it arises.