Digital Disclosure

What follows in this section should today be treated as being solely of historic interest and not current legal advice (!)

In 2019 lawyers finally started looking at using Artificial Intelligence to solve the problem which has effectively wrecked 'access to justice' in civil litigation. An article in the Financial Times that outlined a Pilot Programme (see here) should bring about “a change of culture amongst legal representatives, parties and judges” and stop “the unnecessary harvesting of countless useless documents which the judge will probably never read” - as Dame Elizabeth Gloster, a former Court of Appeal judge and chair of the working group that produced the disclosure reforms, has said.

Additionally at the end of 2019 Bruce Love in the FT reported on a very successful use of Artificial Intelligence by Christian Mahoney, a senior attorney at law firm Cleary Gottlieb, in a case involving a dawn raid by the FBI on a US transport company's headquarters - "A dawn raid by the FBI on a company: what happened next AI saved law firm’s client from waiving legal privilege." (see here)

Thus the long piece below on Digital Disclosure is now out of date. It should therefore only be relied upon as an article on how Digital Disclosure worked from the early 1970s (when Disclosure was called "Discovery" and the applicable litigation rules were set out in Order 24 Rule 10 of the Rules of the Supreme Court) until the emergence of cloud computing, artificial intelligence and machine learning today (2021). In my view these three technologies are going to transform civil litigation over the next two decades and should make trials in the courts something which is both affordable and practical.

Despite the COVID -19 lockdowns, progress took place during 2020. In May 2020 in an article in New Law Journal, Johnny Shearman of Signature Litigation LLP and Graham Jackson of London Legal consider the key features and challenges of the disclosure pilot scheme from the point of view of both the solicitor and the electronic disclosure expert. Their paper is a very interesting and thoughtful resource which anyone involved in complex litigation should review. In June 2020 London Legal made their paper available to download on the London Legal Website - here

Additional Note: April 2021 - Some very important and major changes have been made in the rules regarding Witness Statements at Trial in the Business and Property Courts (B&PCs) see the new Practice Direction 57AC . This rule change applies in the B&PCs to witness statements signed on or after 6 April 2021 in both new and existing proceedings (paragraph 1.1, PD 57AC. Note that certain types of proceedings are excluded unless the court directs otherwise: see paragraph 1.3) These changes address some of the points I raised in article below on disclosure of digital materials back in 2009 and earlier. There is a very good video presentation on this topic given by Peter Knox KC, Christopher Loxton and Natasha Jackson of 3 Hare Court which you can view at this link. Natasha Jackson also wrote a short article on it which you can find here.

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Disclosure of digital materials in litigation (a historic review up until about 2010)

There is, at the moment, a chaotic condition in UK courts surrounding the duties of a party to disclose electronic documents. This long page sets out in historic context the reasons why the problem exists and the issues which need to be addressed. (Note - this article was written around 2010 and was not materially revised thereafter).

Background

A look at the issues surrounding the disclosure or discovery process

Although documents produced today look similar to those produced forty years ago all documents today come from computers. Copies are not kept on carbon paper but on disks and on tape backups. This change has meant that there are different risks associated with the maintenance of true records of events and with attaching the proper weighting to modern documentary evidence. However the infrastructure of organisations producing documents has also changed.

Consider for a moment a medium sized company - even without consideration of the internet. Forty years ago it would produce letters on electric typewriters and keep carbon copies in filing cabinets. Today the medium sized company (even without internet facilities) produces letters on computers linked together in a network. The local area network of one office is linked to another local area network in another office many miles away. Information is held in databases which are replicated from location to location. Sometimes this replication is done over leased telephone lines or using broadband services.

Now factor in the internet. Business today is not conducted by an exchange of letters but by exchanges of e-mail, instant messaging, phone calls and the like. Sometimes all the relevant transactions are between a user and a website without any human intervention at all. Sometimes the transactions are made by a user on an Android or Apple smart phone or tablet.

Internet savvy companies are moving their businesses to the cloud - outsourcing all their data processing requirements to companies such as Amazon or Microsoft. Google, through its G Suite system in association with its Google Vault service, offers very sophisticated cloud services including full and complete transaction and change recording - perfect for a company that wishes to treat computing and business recording resources as little more than essential utility services. Thin client systems, where very little data is held locally, are becoming the norm through extensive use of technologies like Google's Chromebook architecture and mobile computing. Disclosure rules for cloud computing? These are in a state of flux.

The historic position

How used UK lawyers advise their clients in civil disputes?

In UK litigation up to the year 2000, little had changed for nearly a hundred and fifty years. Then Lord Woolf reformed matters in 1999, making changes which have reduced the amount of litigation, front-end loaded the costs and have led to a vast increase in paperwork. Lord Justice Jackson prepared a detailed review of costs in civil litigation which specifically recommended:

77 E-disclosure as a topic should form a substantial part of (a) CPD for solicitors and barristers who will have to deal with e-disclosure in practice and (b) the training of judges who will have to deal with e-disclosure on the bench.

78 A new CPR rule 31.5A should be drafted to adopt the menu option in relation to (a) large commercial and similar claims and (b) any case where the costs of standard disclosure are likely to be disproportionate. Personal injury claims and clinical negligence claims should be excluded from the provisions of rule 31.5A.

But legal procedure and the attitude to the client has not really changes much as can be shown by looking at what Walter Bagehot said in 'Bad Lawyers or Good' in 1876:

'In the first place to a litigant the division of the profession into two halves is a calamity. A considerate person naturally wishes to understand why his case is right, if it is right; and why it is wrong, if it is wrong. Most men are more interested in their lawsuits than in anything else, and would be glad, for their own guidance, to understand them if they could. But when a client, so wishing to see how and where he stands, cross-examines his attorney, he is referred to counsel at the first difficulty. The attorney says: 'Sir, this is a more complex matter than I should like to advise you upon without assistance. It requires greater learning and more ability than mine; I could not pretend to give such an opinion as you ought to have on so important a transaction.' And at first the client is rather pleased He does not, perhaps, much like the cost of paying for the aid of counsel, but he is much pleased at being mixed up in matters so abstruse and important that their aid is necessary. At any rate, he now thinks that he shall fully understand his case; that he shall really know why he is fighting his suit, and be able to judge for himself whether he ought to compromise or persist in it. On this ground he readily enough consents to 'take the opinion,' and looks forward eagerly to receiving it. But when it comes he is almost sure to be disappointed. He finds, no doubt, a plain piece of advice that he ought to do so and so, and perhaps a categorical statement that so and so is the law; but he finds no reasons; he is obliged to believe what the oracle says; he is no nearer to a comprehension of his case than before. Nor can his solicitor help him. He says: 'I am sure, sir, I cannot take it upon me to say why counsel gave that opinion; but as we have asked for it, and paid for it, I suppose I must act on it.' Now, if the opinion recommends the spending of much money, the client may not quite like this. If he could, he would like to get hold of 'counsel', and cross-examine him; he would like to treat him plainly and familiarly, as he does his attorney. He pays one and he pays the other, and he thinks he ought to get as much as he can out of both. But, in fact, he cannot. Counsel is secluded in a remote and inaccessible shrine, and you cannot effectually get at him. Even if the client gets a 'conference', he has to pay for it; and counsel treats him as if he was a curious intellectual 'specimen', perhaps from the provinces. Any question he may ask is answered with a kind of condescension, but counsel thinks plainly, 'What nonsense it is this fellow trying to understand his own case! I am paid to speak to him, and I will speak to him, but I will not speak to him very much.' And the client who has penetrated into the sacred 'chambers', probably finds that he has been put off with some vague and cautious observations, which do not seem to him very consistent with each other, and all which he cannot but think happen to evade the worst difficulty, even if they were not meant to do so. As he comes away he calculates: 'I paid so much a word for that interview, and what have I gained by it?' But it is only in the rarest cases that the client is so enterprising or so intrusive as this. In nine hundred and ninety-nine cases out of a thousand the client never sees counsel at all. He only gets a copy of the oracular opinion from the attorney, and peruses it several times, wondering at its brevity, but still a little admiring its decision. Gradually he comes to feel a confidence in it, and is content to act on it. But when he advances some way further in the business, and is beginning to reflect on the expense, it occurs to him as strange that if the matter is as plain as the counsel tells him it is, the other side should be proceeding with so much confidence, and not attempting to strike their flag. Accordingly, he goes to his attorney, and asks, 'How is it that the other side are not frightened? You showed them Mr. A. B.'s opinion his very distinct opinion. I certainly imagined they would be rather inclined to yield after that.' On which, perhaps with a little smile, the attorney tells him: 'Why, the fact is, that the other side have consulted counsel also. They have been to C. D., a very eminent man in Lincoln's Inn, a gentleman I have often consulted myself, and he advises them that they are quite right. They have sent me his opinion. Here it is; perhaps you would like to take it home with you.' And so the client finds that there is 'oracle against oracle'; that the god of 'Old Square' speaks quite differently from the god of 'New Square'; and goes home dissatisfied and bewildered. The courts of law are blocked with suits which counsel advised to be defended, and in which neither plaintiff nor defendant likes to yield now, because both have spent so very much money.

I do not mean that all the uncertainty would be remedied by a better constitution of the legal profession. No doubt some uncertain cases there always must be; new varieties of complication arise daily, and require novel decisions. Unquestionably, too, other parts of our bad legal education make the law more uncertain than otherwise it would be. But it is plain that the artificial splitting of the law trade into two halves much aggravates the practical difficulty of getting at the law. 'Opinions' are the opprobrium of the legal profession. Everybody knows that an 'opinion' is to be had on almost every side of every question. 'Show me your case,' it is often said, 'and I write you your opinion.' Now, this could hardly be if the solicitor, the man whom the client pays, had the responsibility of advising him. His interest would be to come as near to the truth as he could, because he would be responsible for the advice he gave. But now he gets a shelter under the distant 'barrister'; he does not feel ashamed when the case is decided against him, because Mr. X. Y., a name in the papers, and a man you cannot get hold of, said you would win. And the barrister has no responsibility to the client either. The client cannot come and say, 'You advised me to sue; you told me I was going to win; yet you see I have lost.' The man you can scold did not advise you, and the man who did advise you, you cannot scold.

There are other and very delicate points in this subject. I believe most English barristers, and most English solicitors, to be very honourable men; but we all know that there are some black sheep in both halves of the trade. When, years since, I was reading law, I had laid for me a peculiar rule for pleasing the less honest sort of attorneys: 'Always,' said a very experienced man, 'always recommend proceedings, and then you will be sure to succeed.' His notion was that a barrister who promoted 'costs' would thrive with attorneys who live by costs. I quite believe that it would be a libel to ascribe such motives to most solicitors or most counsel; still one cannot help seeing how well the present system helps those who act on such motives. The ultimate adviser, the barrister, has no relation to the ultimate payer, the client; he has no motive to care to please him. He wants to please the attorney, for it is by the attorney's favour that he lives. What pleases some attorneys is present income. The barrister, therefore, who upon fair reasons, and within decent limits, always promotes costs and contention, will always please at least those attorneys. In case of gross failure, the natural penalty is the client's wrath; but we protect the attorney against this by enabling him to blame 'counsel', and we protect 'counsel' by immuring him in distant dignity.

It may be said that it would be quite useless for clients commonly to see counsel, for the points which counsel have to decide on are so technical that the client cannot understand them. But ought they to be so technical? Ought not the main gist of all cases to be intelligible to men of business interested in them, and anxious to attend to them? In matter of fact, I believe that almost all the law of moneyed property is now intelligible to careful men of that sort; and if the law of landed property is not intelligible, it is only because that law is bad. Mysteries in practical affairs are very dangerous; the more so because, when they once exist, many quiet, unimaginative people cannot help saying and believing that they are inevitable and necessary. But any one who rouses his mind to ask in a specific case, 'How does this law come to be so unintelligible?' will find that the reasons for it belong to some bygone time, and that now it wants to be altered and fitted to modern life. Nothing will ever simplify law so much as the making lawyers explain it to non-lawyers. It will be a great gain when all clients ask about their case anxiously, and when 'counsel' have to explain it clearly

The current position (again a historic review - not valid post 2020)

How do UK lawyers today advise their clients in civil disputes?

Let's consider the example of a commercial dispute without electronic evidence but simply with an exchange of letters, contracts, delivery notes etc.

Suppose a medium sized company in England called X got into a dispute with another company in England called Y. X decides that it needs to go to litigation and goes to see its lawyers, termed solicitors. It sets out the facts, producing copies of correspondence from its files. These documents would be copied for the solicitors who would advise upon them. The solicitors might decide that the matter required the views of another lawyer, a barrister or 'counsel', who would be able to give a more objective view of the likely prospects of success in the litigation and would be particularly familiar with drafting of claims and arguing of cases in court. Meetings would take place and potential witnesses would be identified and 'proofed' (a note taken of the evidence they would be likely to give if the matter came to trial).

At this stage under reforms made by Lord Woolf the solicitors would be required to send a Letter of Claim to the other side, setting out the facts as known to them, the allegations and the relief and damages sought. This requirement is termed a "Pre-Action Protocol". Failure to comply with Pre-Action Protocols" can result in costs being awarded at trial against a winning claimant, simply for not giving the other side the opportunity of settling the matter without litigation.

If it were decided to proceed with litigation and there has been an unsatisfactory response to the Letter of Claim, then a barrister would be instructed to draft the Writ and Statement of Claim. These formal documents, called 'pleadings' would set out the facts alleged by Company X. The drafts would be approved, stamped by the court authorities (for a fee) and then served upon Company Y. The litigation process would then have commenced and the court would thereafter take an interest in the matter - requiring matters to be proceeded with in a timely manner.

Company Y would acknowledge receipt of the Writ and Statement of Claim and instruct its solicitors to defend the action. Company Y would produce copies of correspondence from its files for its solicitors, which would be photocopied. They would be advised on their likely prospects of success or whether the matter should be settled. Proofs of evidence from potential witnesses would be taken. If the case was not to be settled then a barrister would be instructed to settle the Defence, another 'pleading', which would be served upon the solicitors to Company X.

The next stage in litigation

After pleadings comes Disclosure - as it was until Year 2000

There are a few more minor stages before the pleadings close and the case is set down for trial. It is then that a further process begins - disclosure (which was prior to Lord Woolf's reforms termed "discovery" which is the term still used in the United States). Under the Rules of the Supreme Court, prior to Lord Woolf's reforms, each party to the action ( hence in this example each company) was required by law to produce a list of all relevant documents in their 'possession, power, custody or control'; relating to the issue in dispute between the parties. These lists of documents were exchanged. The lists were in two parts, one listing documents which were 'discoverable' and the other listing documents which exist but which the party claims were 'privileged'. A privileged document would be, for example, a copy of a legal Opinion which would set out the chances of success in the litigation.

Before photocopiers existed each party's solicitors would meet and go through the list of documents that the other had provided with the actual documents in front of them. One solicitor would say 'I would like a copy of these documents from your list'. The other solicitor would then employ a scribe who would hand copy the requested documents. The copies, and the bill for the wages of the scribe charged out at a standard rate, would be handed over. It was a practice within the profession that this bill had to be paid immediately between solicitors. Each client was thus presented with a bill for copying well before the case went to trial

The cost of preparing a large number of documents was considerable and this acted as a check upon a solicitor asking for too many documents - he only asked for those that he considered to be necessary for his case. Having looked at these copy documents he could ask for other documents on the list and these would be copied and supplied. Additionally as he looked at documents these might refer to other documents not included in the list. If a discoverable document referred to another document then, subject to privilege, this further document was discoverable and the solicitor could require the scribe to copy it.

The Rain of Paper

The arrival of the photocopier sixty years ago caused a change in this practice. Instead of solicitors meeting, looking through the documents and saying which they wanted copied, each party simply photocopied all the discoverable documents on their list and sent them to the other side along with the bill for photocopying. Initially the cost of photocopying was still quite high and this practice took some time to be established as solicitors disputed bills. But by the late 1980's, with industrial photocopying at a penny a sheet, photocopying of documents in discovery proceedings had become a major revenue earner as law firms charged their clients around 20 pence per sheet.

The unfortunate result of this practice was a vast increase in the number of documents in a case. Most of the documents were only marginally relevant - but the cost of photocopying marginally relevant documents was a lot lower than the cost of employing a professional litigation solicitor to review each document and decide whether it was worth photocopying or not. Yet the task of reviewing the relevance of documents always had to be done. It was pushed down the line into the courtroom. Simple cases developed mountains of documents. Barristers were required to review the documents in a case and produce small bundles of key documents. Sometimes the numbers of documents in the case became so large that it became impossible to try the case. Frequently the cost of reviewing all the documents in the case exceeded the value of the litigation.

Enter the early network - The arrival of the local area network in medium sized firms

At first the arrival of computers did not cause any major changes. A standalone computer was just a type of electronic filing cabinet. Special rules were created for the production of computer printouts to try and ensure that the computer was working properly and that false evidence was not presented. But as computers became linked up the question of what was 'discoverable' remained unanswered. The law said that all relevant documents in the 'possession, power, custody or control' of a party were discoverable. In theory this means that if there is a relevant document anywhere on a network which is within the 'power' or 'control' of the party to the litigation then it should be included in the list of discoverable documents and a copy supplied to the other party to the litigation if a request is made. But nobody has addressed this issue of networked workstations in reported litigation.

One reason for this has been that paper documents were still kept and filed. There was a tendency to ignore the computer and look at the paper copies of everything rather than the electronic copies. While a company may have had copies of all its outgoing documentation on its computer network the incoming documentation (pre-email) was in paper form and not electronic. Paper bundles of relevant discoverable documents were prepared by simply printing out the outgoing electronic documents, photocopying the original incoming documents and giving the other side this sheaf of paper. This fits into the structure of conventional legal offices and the courts. But it did not address the problem.

Exchange of Statements

What followed from a change of procedure in the early 1990s

In the early-1990s a change in procedural rules led to a requirement for the exchange of witness statements in almost all civil litigation. This instantly caused another tier of paperwork handling to be inserted into the pre-trial process. Solicitors and counsel hone and redraft their client's witness statements until they are in a form for exchange with the other side. The aim of this change in the rules was to reduce the time spent in court on the case by removing the need for examination of witnesses in chief. Coupled with the extra requirement for each party to submit skeleton arguments the new rules meant that within thirty minutes of the start of a civil case the first witness can be on the witness stand under cross-examination of his witness statement.

But while this procedural change may have shortened some trials it had three unfortunate consequences. First the work required in production of witness statements for exchange greatly increased the cost of litigation. The witness statement has to be cross-referenced to the documents in the case. This lead to bundles and sub-bundles of extracts from the discovery documents being produced as exhibits to the witness statements - a multiplication of the papers. Second the refinement of witness statements into a form suitable for exchange turned simple narratives into documents which were nearly sophisticated pleadings. The solicitor and counsel refined what each witness says happened - at all time trying to keep within the formal rules which stopped the solicitor and counsel from inventing or slanting the evidence. The preparation of witness statements thus became a very expensive activity. Third, witness statements reduced the effectiveness of cross-examination - the crucible in which the truth of a witness was tested. Following the exchange of witness statements a witness is no longer taken through his personal recollection of events so that the court can observe his demeanour and attitude as he tells his story. He is instead given a copy of his witness statement, asked if it is true and then placed in the hands of the opposing advocate who will immediately cross-examine him on this carefully honed statement. This method of presentation can easily lead to false impressions. The advocate who has to cross-examine will not have seen the witness going though his evidence and will have to start his task 'cold'. If the witness keeps to his statement and this has been skilfully drafted with all the dangerous issues removed, it may be very hard or impossible to establish that the witness is lying or is mistaken.

Lord Woolf’s changes

In the mid-1990s Lord Woolf held a two year inquiry into the civil legal system. It showed that legal costs generally exceeded the value of compensation awards when claims were less than £20,000. In one case cited, the legal costs came to £69,295 on a claim which was worth £2,000.

Consequently to deal with the rain of paper in the discovery process he recommended a far narrower scope for it - and also recommended that the discovery process was renamed "disclosure" since this term was closer to the meaning of the process as understood by the non-lawyer. Today under the modern Civil Procedure Rules ("CPR") the scope of disclosure does not turn on relevancy, but rather on specific language featured in Part 31.6 of the CPR, "Standard disclosure- what documents are to be disclosed"

31.6 Standard disclosure- what documents are to be disclosed

Standard disclosure requires a party to disclose only -

(a) the documents on which he relies; and

(b) the documents which-

(i) adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case; and

Each party in a case has to prepare a disclosure form (N265) which requires each party to state whether it carried out an electronic search and to state by list what was searched and the extent of that search. But few lawyers seriously address themselves to this task. Paragraph 2A of the Practice Direction to CPR Part 31 sets out in clear language what lawyers are supposed to do. Specifically it requires each side to consider in a rational non-adversarial manner what electronic materials they have which might contain evidence, reveal this to the other side and "discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies." (Paragraph 2A2). This discussion is meant to take place before the Case Management Conference and if they cannot agree, they are directed to refer the matter to the judge for directions at the earliest possible date.

In practice this Practice Direction is ignored by both lawyers and judges since few know how to go about such a task. (More recently Practice Direction 31B Disclosure of Electronic Documents, published on 31 January 2017 has attempted to put some structure into this process - it is still too early to see if this is having any effect.)

The E-disclosure questionnaire, its purpose and format

{Note: this section of this article may no longer be accurate following the publication of Practice Direction 31B Disclosure of Electronic Documents. Students wishing to rely upon this section need to make contemporary enquiries.]

The senior judiciary are aware of the fact that e-disclosure provisions are being ignored. Consequently a working party, led by Senior Master Whitaker was set up in 2009 to review matters. The aim was to draw up a formal questionnaire which would require parties in appropriate cases to exchange answers to the questionnaire dealing with their electronically stored information (ESI). It was planned that the draft should be brought into effect in April 2010 by a change in the CPR - a new CPR dispensing with standard disclosure and establishing a new CPR r 31.5A requiring the court to consider the most appropriate process for disclosure at the first case management conference.

But it did not happen quite like that. Following a meeting in February 2010 the Civil Procedure Rule Committee were not prepared to adopt the new CPR r31.5A. I understand from an article by barrister Clive Freedman QC "One of the points which caused difficulty has been deciding which cases are cases in which the parties should be obliged to exchange answers to the questionnaire. On the one hand, it is desirable that there should be an obligation to exchange answers in all cases in which this would be likely to save time and costs. On the other hand, there should not be an obligation to exchange answers in relatively straightforward cases where answers to a detailed questionnaire are not needed. The difficulty lies in finding words which appropriately distinguish between these two situations."

Today the Practice Direction has been brought into force and not only must the parties sign a Statement of Truth in respect of the case but the E-Disclosure Questionnaire has to be signed by a solicitor, client representative or IT consultant as being true and complete and the person signing the questionnaire is required to attend each Case Management Conference at which electronic disclosure issues are likely to be considered. (For further thoughts on this topic see my old article Chicken and Egg Disclosure which no longer exists on this site but can be located by the WayBackMachine). The problem is that the solicitor, client representative or IT consultant rarely knows enough to be able to truthfully sign the questionnaire.

According to Clive Freedman QC "The questionnaire is available for use by parties in cases in which it would be of assistance and they should certainly consider using it in appropriate cases without awaiting the new Practice Direction - some have already done so." Senior Master Whitaker directed the defendant to answer the questionnaire in Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation) [2010] EWHC B41 (QB) and he annexed a copy to his judgment.

Does the questionnaire really work? - I have my doubts. A questionnaire should focus the minds of the parties so that they identify the scope of the disclosure of ESI required in the action. They should then discuss and agree with each other the extent of a "reasonable search" under CPR rule 31.7. Such a discussion should also agree the format in which disclosure should be given to the other party. Such a process is also meant to give the court sufficient information about the architecture of the parties' electronic storage systems and the identity of the electronic media that may contain relevant information in the event that an application has to be made to the court on disclosure.

In practice the adversarial system tends to work against this and the questionnaire does not have a coherent contextural framework around it. The lack of knowledge amongst practitioners and the judiciary means that sensible points can be rejects as 'fishing' or as being 'irrelevant' and alternatively that unreasonable requests can be nodded through by a master or judge who does not understand the true implications of his order.

Since almost every case today will involve some ESI it is sensible for the claimant to take a pro-active role with respect to it and to be able to explain not only why certain ESI is needed but how it is likely to fit into the whole context of the litigation and the day to day activities of the parties. A emerging technological approach to ESI is predictive coding or computer assisted review. Predictive coding is a process by which software is trained by a senior lawyer (the 'expert') who is familiar with the issues of a matter. The expert reviews a representative sample of the documents and registers his or her decisions upon the relevance or otherwise of each document reviewed on the system. In this way the expert 'trains' the technology to recognise responsive patterns. Parties need to be careful about setting accuracy levels and must understand that machines will not give perfection, but human review does not do this either.

But ESI needs to be considered not just after pleadings but at the very outset of the litigation. In my view it is always essential to consider at the very start of evey case what ESI the defendants will have in their possession - and how to get hold of it. A first step is to consider who are likely to be the key defence witnesses. Then, well before the litigation gets going, it is sensible to send the prospective defendants a Spoilation Notice, where you put them on notice of the forthcoming litigation and require them to confirm that none of the ESI in the possession, power, custody or control of the key defence witnesses will be destroyed pending the formal commencement of the action and applications for disclosure.

Spoilation, which is an American concept, has developed a substantial caselaw around it relating to the inference which can be drawn from the destruction of a document or a thing - namely that had it not been destroyed it would be evidence which adversely affect the case being put forward by the person who destroyed the document or thing. Three US states have 'spoilation' of evidence as a specific tort and there is now good US caselaw on this topic Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd. et al., 2009 WL 998402 (ED Mich. 4/14/09) (failure to preserve back-up tapes post trigger event causes court to hold a hearing to determine if sanctions should be issued) (sanction decision reserved pending results of hearing.). In the UK in Earles v Barclays Bank [2009] EWHC 2500 (Mercantile) at [27]-[30] the Judge stated that before proceedings are commenced there is a duty not to destroy documents deliberately, but no duty to preserve documents, whereas after the proceedings have been commenced documents must be preserved. If they are not preserved, adverse inferences may be drawn. Failure to preserve documents before commencement of proceedings may result in costs sanctions.

For further information about the historic position of electronic disclosure in England and Wales, see www.edisclosure.uk.com (which ceased being updated in September 2018 upon the appointment of Mr Justice Freedman to the Queen's Bench Division of the High Court in October 2018.) [Note: this website no longer exists but the WayBackMachine has retained a copy here]