Parties to litigation will have to make a disclosure statement confirming that they have completed a search of their electronic data and setting out the extent of that search, under new guidance forming part of the Civil Procedure Rules (CPR).

The guidance on exchanging electronic documents in the disclosure process - effective from the beginning of October and following the example of the Commercial Court - says that parties are expected to discuss issues relating to searches for and the preservation of such documents at an early stage of proceedings. It also says that the word 'document' in the CPR includes electronic documents.


Guy Pendell, a litigation partner at City firm CMS Cameron McKenna, said it is significant that businesses will have to say in the new disclosure statement what media they searched and the limitations to that search. The guidance suggests that parties may need to provide information about their storage systems and document retention policies.


He said: 'The parties will need to know the scope of their electronic storage systems and be prepared to justify decisions not to conduct certain searches. You have to understand your IT systems fairly well - you can have data stored in various locations in various ways.'


Data held not only on central servers and PCs but also on PDAs (personal digital assistants), mobile telephones, and other electronic devices could therefore be relevant and disclosable in litigation.


Mr Pendell added that the guidance had wide implications for a party's document management and retention polices. 'Some companies, such as banks, are very sophisticated in their approach while others have not given it much thought,' he said.


Careful consideration should also be given to the extent to which information is disseminated within a company and the content of that information.


'A party with established document management and retention policies, that include e-documents, is likely to find the e-disclosure process more manageable, potentially cheaper and, arguably, more limited than a party without such systems.'