Solicitors will need to provide more details to their opponents on precisely what searches have been carried out to find electronic documents before litigation, if recommendations in a report published this month are adopted.

The working party report on disclosure of e-mails and electronic documents in civil proceedings, set up by the Commercial Court users' committee and chaired by Mr Justice Cresswell, also said that solicitors should warn clients not to delete e-mails in the run-up to litigation.



Culbert: damning e-mails
However, the report concluded that while some amendments to the present Commercial Court guide would be useful, there was no need for rigid guidelines on the disclosure of electronic documents in litigation. Instead, the courts should be allowed discretion in their use of the current 'proportionality' and 'reasonableness' tests applied.


Mark Culbert, a partner at Osborne Clarke and chairman of the IT disputes group at the Society for Computers and the Law, said: 'The recommendations will not mean less disclosure, but will mean that parties at an early stage can understand what searches have been made and where. A disclosure statement will have to specify whether searches have been made of active e-mails, metadata, and back-up tapes, for example. That will encourage a better execution of the disclosure exercise because it will make parties think about how they are conducting searches.'


He added: 'There are real issues that need to be addressed in terms of generating damning e-mails in the first place, not just how they are handled in court. The main problem is that employees don't take the same care over crafting an e-mail as they do with a letter.'