Shadbolt & Co LLP Solicitors E-DISCLOSURE IN THE ENGLISH COURTS – REVEALING ALL? ABA CONFERENCE OCTOBER 2005 Kate Matthews Commercial Litigation and Dispute Resolution Partner

Shadbolt & Co LLP Introduction Electronic disclosure… part of the disclosure process? What are the obligations of disclosure under the English rules? How do these obligations specifically apply to electronic documents? Why is this important? How will it affect the client? How are we seeking to address these issues? Can you avoid it?

Shadbolt & Co LLP Electronic disclosure – part of the disclosure process Exchange of information English Civil Procedure Rules 1998 (CPR) CPR Rule 1.1… the Overriding Objective –To ensure the parties are on an equal footing –To save expense –To deal with the case in a proportionate manner –To deal with the case expeditiously and fairly

Shadbolt & Co LLP The obligations of disclosure CPR Part 31 Duty to preserve Disclosure/Inspection Definition of documents Standard disclosure Duty to search Sanctions by the Courts

Shadbolt & Co LLP How do these obligations apply? Practical difficulties –Volume and retrieval of documents –Data format –Metadata

Shadbolt & Co LLP Why is it important? Extent and method of searches Why is this necessary? Reasonable and proportionate search Specialist help?

Shadbolt & Co LLP Are we addressing these issues? The Working Party to the Commercial Court Users’ Committee The Admiralty and Commercial Courts Guide and Practice Direction The English Commercial Litigators’ Forum Recommendations The new Technology and Construction Court Guide Litigation Support Technology Group Draft Practice Direction The Amendments to the Practice Direction to CPR Part 31 as of 3 October 2005.

Shadbolt & Co LLP Practical Recommendations Accessibility of electronic documents Location Relevance Cost of recovery Cost of disclosure/inspection Physical alteration of original electronic format

Shadbolt & Co LLP Cooperation of the parties Exchange information at an early stage Seek to identify parameters and scope Timetable Flexibility

Shadbolt & Co LLP Can you avoid it? Business model of the client Destruction vs. preservation of documents Feast or famine? Privileged/commercially sensitive documents Does this process really reveal all?!?

Shadbolt & Co LLP Kate Matthews Commercial Litigation and Dispute Resolution Partner Shadbolt & Co LLP Tel: +44 (0)