Not necessarily – certainly it is something that needs to be considered, but it’s not always going to be required. Whilst exploration of eDisclosure as a potential exercise should be entertained, no two cases are the same, so not every case will require ED to take place. As with any case, it will be up to your legal team (and the opposing team) to make the decision on whether eDisclosure is necessary, as they may well have a far more effective plan to achieve the desired outcome which bypasses the need for eDisclosure.
Whilst costs will increase due to additional services being necessary, there is no reason why the eDisclosure process has to be prohibitively expensive, and it is certainly a cheaper approach than paying your legal team to review a large amount of documents which are clearly not relevant to the case.
Whilst there may be some eDisclosure service providers who will attempt to convince the client that anything and everything should be captured, this is absolutely not something that needs to happen, the only value in this approach is to your service provider, in that it enables them to charge you a lot more in fees than is reasonably necessary. Such providers will invariably send a whole team of staff to acquire as much data as possible, when one or two people with a clear idea of what needs to be collected would suffice (aka targeted collections). In short, provided the party which is obliged to disclose electronic documents has an effective information management policy, there should be no need to capture large quantities of irrelevant data.
Practice Direction 31b of the civil procedure rules deals with this issue. The first part of section six (General Principles) of PD31b states that “Electronic Documents should be managed efficiently in order to minimise the cost incurred”. Part five of the same section states that “disclosure of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given”.
Whilst there are firms and staff within those firms who specialise in both, the two are very different disciplines. It is plausible that both might be required in the course of the same case. For example, if it is suspected that a company or individual(s) has attempted to hide or delete data prior to disclosure, a forensic investigation could well be necessary; both to prove that nefarious activity has taken place and also to recover the missing data for the purpose of full disclosure.
The whole point of eDisclosure is to reduce the volume of data which needs to be reviewed in as efficient a manner as possible, essentially organising large amounts of raw data into a manageable and easily reviewable form, whilst discarding information not pertinent to the case. The source data should consist of specific documentation which is relevant to the case in hand and has been identified as being relevant to the case being contested (i.e. disclosable).
Digital Forensics, on the other hand, covers a myriad of different areas relating to a computer (the word “computer” referring to not only the traditional variety, but also tablets, smart phones, satellite navigation systems and even in one instance that a colleague once encountered, a household appliance!) or piece of storage media, as well as having far more stringent guidelines with regard to not contaminating potential sources of evidence. Digital Forensics deals with both active and deleted data, and could involve a number of different requirements with regard to identifying the sequence of events that took place on a device.
The eDisclosure process is relevant to any case which involves potential evidence being stored in electronic format, regardless of whether the defendant is a large multi-national organisation with tens of thousands of employees and computers or a sole trader. The amount of information stored electronically has increased exponentially over the last few decades, so it’s inevitable in many instances of litigation, relevant information could well be electronically stored information.
Written by: Alex Seigle-Morris of Portcullis.