Author

Edward Spencer

Senior Counsel

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Author

Edward Spencer

Senior Counsel

Read More

13 June 2022

Disputes Quick Read – 37 of 88 Insights

Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format

  • Briefing

In Veasey v Macdougall and others [2022] EWHC 864 (Ch) the court partly granted applications seeking disclosure of additional documents (under PD 51U.17 and PD 51U.18) by the petitioner and two respondents in the context of an unfair prejudice petition.

The judgment reiterates the obligation, unless otherwise ordered or agreed, for electronic documents to be disclosed in native format (PD 51U.13). 

In this case, the petitioner was required to make a witness statement to explain what had happened, including the extent to which he had been advised by solicitors of his obligations.

A reminder of the disclosure obligation under PD 51U.13

"13. Production of documents

13.1 Save where otherwise agreed or ordered, a party shall produce -

(1) disclosable electronic documents to the other parties by providing electronic copies in the documents’ native format, in a manner which preserves metadata;

...

13.2 Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them."

The petitioner's disclosure included text messages. The text messages which were considered relevant were copied into a new standalone document and uploaded to the e-disclosure document review platform. 

That step, of creating a new document, breached PD 51U.13.1(1) and 13.2 as the text messages were not provided in native form and the metadata was not preserved. The petitioner's reasoning was that this method of creating a new document avoided "having to redact over 1,000 pages of personal and irrelevant material which is disproportionate in the circumstances.". They added "the document uploaded to the platform containing the relevant texts does not have the original meta-data in relation to the messages but this can be provided under separate cover should you require it.''

However, the decision to balance costs and the obligation to provide documents in the format set out in the CPR did not convince the judge. While the effort to reduce costs and the offer to provide metadata separately was noted, the judge (HHJ Matthews) stated that the fact remained that the petitioner did not comply with the rules. He said:

"Electronic disclosure is not simply a recent “add-on” to the original disclosure regime. On the contrary, in the modern business world, and under CPR Practice Direction 51U, it is most of it. Producing copies of electronic documents, or simply just printed out versions of them, gives less information (and sometimes different information) compared to the original native versions. Mistakes do occur in copying. It is not unknown for electronic documents, like paper documents, to be tampered with (though there is no suggestion of that here). It is therefore important that the rules specially formulated for electronic disclosure, in particular about disclosing electronic documents in native format, are adhered to."

This highlights the importance of complying with the rules even in cases involving slightly more unusual, or seemingly less straightforward to produce, electronic documents such as text messages or electronic messages other than email. 

Parties to litigation cannot ignore the rules simply for the ease of production or to save costs. 

A robust and defensible collection process, with data of all types being extracted and processed in a forensically sound way, isn’t a corner to be cut. Before taking any step which is not in full compliance with the rules, you should seek to reach agreement with the other side as to an appropriate approach.

Solicitors' duties

When the respondent requested native versions of two text messages whose timing was considered relevant, the petitioner's solicitors indicated that they were unable to locate native copies. They indicated in fact they had never had the documents in native format and only had possession of screenshots of the text messages.

The judge reminded the petitioner's solicitors of the importance of the following duties:

  • To explain the importance of document preservation and their clients' duty to ensure that documents are preserved and electronic documents "properly safeguarded".
  • To take control of the original versions of the disclosure documents. He accepted that "exceptional circumstances" might require the solicitors to take copies in the first instance. However, they must be complete copies (including metadata), and the solicitors must satisfy themselves that they are accurate and complete.

The judge decided that there had clearly been a failure to comply with the disclosure order. Given the difficulties and confusion caused, it was "entirely reasonable and proportionate" that the petitioner should make a witness statement supported by a statement of truth, regarding what had happened. The statement should either evidence that he had complied, or that it was impossible for him fully to comply, taking into account his own actions and the extent to which he was advised by solicitors of his obligations. 

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