The changes within Civil Procedures Rules, Practice and Direction, concerning disclosure of electronic documents reflect an increase on the emphasis of managing reasonable and proportionate disclosure of electronic data. Previously, there has been a significant reliance on "asking the questions" and not being sure of accepting the answers. This has not always resulted in a meaningful and productive discussion between parties in a case, as there has always been the question of "is that all", followed by "are you sure / are you really sure / are you really, really sure?".
As of the 1st October, someone may have to sign a disclaimer to the effect that full and thorough consideration has been given to sources of electronic data and their inclusion (or not) during litigation. This will certainly focus the mind of the person whose name and signature are to appear.
A standard pro-forma questionnaire will help ask the right questions, but whose name should ultimately be on the document confirming the answers are true?
Whatever the final format of the disclaimer, it will be very interesting to see how the next few "big ticket" cases evolve. What is certain is that the people involved in and around the electronic discovery process will have to be very clear on exactly what it is they are doing, as someone will have to be accountable for it. And with the aim of reasonable and proportionate, a full "drains-up" collection & production will not suffice.
Technology Forensic Senior Manager
Telephone: 020 7893 2996 Email William