In October 2010, new court rules came into effect in England and Wales which reinforced the importance the courts are placing on the disclosure of electronically stored evidence. In this article, Michael Axe assesses the effects of these new rules, and the dangers of ignoring them.
When the Civil Procedure Rules were first introduced in 1998, the relevance of Electronically Stored Information (ESI) was not at the forefront of anyone's minds. But as the way in which businesses operate has fundamentally changed over the course of the last decade, the Courts have had to develop new rules to deal with the avalanche of new technology that has become not only available, but commonplace.
The Courts have confirmed that electronic "documents" include not only the obvious examples of word-processing documents, spreadsheets and emails, but also SMS text messages, digital voicemails, instant messages, web-based applications, peer-to-peer files, electronic calendars and webpages, as well as "deleted" files and hidden metadata. Not only that, but the types of places that parties are expected to consider searching for relevant ESI has expanded from just desktop PCs and laptops, to smartphones, iPads/tablet computers, memory sticks, digital cameras, iPods/media players, servers and back-up archives.
If there is one key message which the English Courts have been saying in relation to the disclosure of ESI, it's that parties can no longer afford to bury their heads in the sand and ignore the issue. It is clear that the English Courts are not afraid to impose significant cost sanctions on a party that fails to comply with its obligations in relation to "e-disclosure".
Whatever the future may hold, what is clear is that the Courts are endeavouring to keep up with the technological advances, and they expect parties to proceedings to do the same or face serious costs consequences.