CPR 31.4 – anything in which information of any description is recorded (notes/emails)

PD31A para 2.1 – applies to electronic documents on servers, even those you thought had been deleted but were recoverable

• Sol has duty to ensure client complies

• Familiarise yourself with client business (are calls taped etc)

CPR 31.6 - Docs which client relies upon (r31.6a) and which:

- Adversely affect own case - r31.6(b)(i)

- Adversely affect another's case - r31.6(b)(ii)

- Support another’s case - r31.6(b)(iii)

d) docs required to be disclosed by relevant PD – r31.6(c)

• Only if they relate to a point in issue

Only need to disclose copies if contain “modification, obliteration or other marking” which relates to (a,b,c,d) above – r31.9 [the copy is treated as a separate doc]

Use the specific terminology above DO NOT just say doc is relevant to the case

CPR 31.8 docs which are or have been in their physical possession

• is/was in his/A’s physical possession/Premises – r 31.8(2)(a)

• he/A had a right to possession – r 31.8(2)(b)

• he/A had right to inspect/take copies – 31.8(2)(c) (e.g. medical records)

• Storing docs with an A (bank or sol) if client has a right to demand them then they are in their control

• Same goes for accountant or surveyor

• but docs created by the A for his own purpose belong to him and are not within control of client

Assume client is A:

- If Yes to all the below questions then need to disclose existence of docs

- No obligation on party to obtain docs which are not within parties control but he might be able to get hold of – client should not obtain papers from TP without sol prior approval n case by doing so they become disclosable

MUST state issues are dispute (check case summary or failing that POC/Defence D’s+NA’s)

STATE why document affects D’s case in relation to r 31.6

a) Statements of case – will ALWAYS satisfy test

b) Docs mentioned in statement of case – USUALLY satisfy, why else would it be there?

• Party may always inspect these docs, no privilege – r 31.14

c) Costs – USUALLY be in dispute (e.g. Part 36 offers adverse to party who didn’t accept)

d) Without prejudice correspondence – USUALLY satisfies test despite potentially privileged

e) Instructions on expert reports – will ALWAYS satisfy test and not privileged – r 35.10(4)

• However, specific docs that relate to instructions are privileged – r 35.10(4)(a)

f) Request for further info – SOMETIMES disclosable

Irrelevant info can be removed if contains commercially sensitive info which will give rise to data protection issues – r 31.6

• Should state in description “some parts redacted”

• Technically other party has duty of confidentiality – r 31.33 but understandable that other party may not want to rely on it

Other side can ask to see redacted party but we can use r 31.3(2) to argue its disproportionate to issues in the case

Must make reasonable search– r31.7 bearing in mind overriding principle of proportionality – PD31 para 2

Factors to be taken into account when determining reasonableness:

• Number of docs involved – r 31.7(2)(a)

• Nature/complexity of proceedings – r 31.7(2)(b)

• Ease and expense of retrieval – r 31.7(2)(c)

• Significance of doc – r 31.7(2)(d)

PD 31B (electronic docs) – encourage and assist parties to reach agreement in relation to disclosure of electronic docs in proportionate and cost effective manner

• para 2A - definition covers docs that are stored on servers and back-up systems and electronic docs that have been deleted and metadata

• Para 7 – Sol must notify client as soon as litigation becomes a possibility of need to preserve electronic records and halt deletion

Disclosure of electronic PD 31B para 6:

• Docs should be managed efficiently to minimise cost

• Technology should be used to ensure doc management efficient

• Disclosure should be given in manner giving effect to OO

• Should be available in format to allows receiver to access/search same way as sender

• Disclosure of docs not relevant to proceedings places excessive burden on receiver

Factors to be taken into account when determining reasonableness for electronic docs - PD 31B para 21:

• Location, number, accessibility, nature, costs, chances of finding info

• Modification of searches/use of keywords

• Using commercially available software (may need expert advice)

• Para 22 – may not be reasonable to search some/all of parties electronic storage against a key word

Often reasonable not to search for docs before certain date PD 31A para 2

Electronic docs questionnaire (optional) – person who signs statement of truth must attend CMC/other hearing where disclosure to be considered

• Summary to be prepares prior to 1^st CMC

- Digicel v Cable and Wireless 2008– emphasised the importance of sols making initial determination of what is a reasonable search, if you don’t discuss disclosure with other side there is a risk of an app for specific disclosure. Negotiate prior to disclosure deadline and if necessary refer issue to court determination

• Each party should serve on other a list of docs r31.10(2)/CCG E3.2

• R31.10(3) list should identify docs in a convenient order and manner and concisely as possible

- r31.10(4)(a) - should state if want to withhold inspection...