More than six months on, litigators are still coming to terms with the concept of 'e-disclosure' and identification of electronic documents. Guidance in the form of the amendments to practice direction 31 of the Civil Procedure Rules (CPR) was welcomed. But how are such amendments bedding down in practice?

Lawyers are grappling with the sheer volume and diversity of electronic documents and e-mails now produced in the business world. The definition of 'document' is broad, but it includes databases, word processing files, spreadsheets, e-mails, text messages and even information that has been deleted or archived.


The definition also specifically extends to metadata, the embedded or 'hidden' data in the document showing facts such as when and by whom a document was created, amended, transmitted, even to whom it was blind copied (see [2006] Gazette, 11 May, 13).


The obligation under the CPR to consider disclosure of electronic documents is tempered by the overriding objective of proportionality and the requirement to carry out a reasonable search. But practitioners are expected to guide their clients through often complex systems of document storage (hard copy or e-versions) to effect a reasonable and proportionate search.


In-house or external specialist IT help is often needed to identify and retrieve data. It may be particularly important to preserve metadata to show inadvertent or deliberate changes made to electronic documents, for example, in cases of fraud, inconsistent evidence and unreliable witnesses. In these cases, it is just possible metadata can give us that elusive smoking gun.


A lack of understanding could spell potential disaster, not only for the parties' respective cases, but also because it may lead to costs penalties or other Draconian sanctions. The disclosure process could become a costly, time-consuming task and potential battlefield.


Early co-operation based on informed decisions is encouraged. In many cases, mutual agreement not to search for and/or disclose certain categories of documents, including metadata, may well be justified, taking into account factors such as the costs, nature and complexity of the proceedings. In any event, it is clear that practitioners need more than ever to keep pace with technology in the business world.


Kate Matthews is a partner and head of commercial litigation in the Reigate office of Shadbolt & Co