ROYAL COURT OF
JERSEY
RC17/08
Discovery of
Documents held in Electronic Form
1.
The purpose of this Practice Direction
is to provide guidance to parties on how to make discovery of Electronic
Documents in a proportionate and cost effective manner.
2.
This Practice Direction shall apply to
all cases where the discovery to be provided is or is likely to consist substantially
of electronic documents.
Definitions
3.
In this Practice Direction the following
words or phrases shall have the following meanings:-
a.
‘Data Sampling’ means the process of identifying
relevant Electronic Documents through creation of a sample of representative
individual documents;
b.
‘Discovery Data’ means information
relating to Electronic Documents which are to be disclosed by a party,
including for example the type of document, the date of the document, the name
of the author or sender and the recipient, and the party disclosing the
document;
c.
‘Electronic Document’ means any document
held in electronic form including an Electronic Image. It includes, for
example, email and other electronic communications such as text messages or
similar means of communication and voicemail, word-processed documents
including presentations and spreadsheets and databases, photos or videos and
documents stored on portable devices such as memory sticks and mobile phones.
In addition to documents that are readily accessible from computer systems and
other electronic devices and media, it includes documents that are stored on servers
and back-up systems and documents that have been deleted. It also includes
metadata and other embedded data which is not typically visible on screen or a
print out;
d.
‘Electronic Image’ means an electronic
representation of a paper document;
e.
‘Keyword Search’ means a software-aided
search for words across the text of an Electronic Document;
f.
‘Metadata’ is information about an
Electronic Document. Metadata is typically embedded information about the
document which is not readily accessible.
It may include (for example) the date and time of creation or
modification of a word-processing file, or the author and the date and time of
sending an email. Metadata may be created automatically by a computer system or
manually by a user; and
g.
‘Original Electronic document’ or ‘Original
Format’ means an Electronic Document stored in the original form in which it
was created by a computer software programme;
General Principles
4.
When making discovery of Electronic
Documents the parties, their legal representatives and any experts retained to
assist the parties should have regard to the following general principles:-
a.
Discovery of Electronic documents should
be managed efficiently in order to minimise the cost incurred;
b.
All parties to a dispute should as far
as possible cooperate with each other in relation to discovery of Electronic Documents. This includes taking all reasonable steps to
agree the process by which discovery of Electronic Documents is provided and
exchanged, and providing information on the process, or processes used to make
discovery;
c.
Appropriate technology should be used in
order to ensure that the disclosure of
process is carried out efficiently and effectively;
d.
As far as is reasonably practical, the legal
adviser of each party should allocate an individual within that legal practice to
be primarily responsible for the management of the discovery process. Where a party uses an independent expert to
assist with the discovery process, that party shall identify that expert to all
the other parties to the litigation;
e.
When managing the discovery process and
when providing discovery, a party must at all times act in a manner consistent
with the overriding objective;
f.
In providing discovery of Electronic Documents
a party should take reasonable steps to avoid giving disclosure of irrelevant
documents, or adopting an approach which may place an excessive burden in time
and costs on the party to whom disclosure is given;
g.
As far as is reasonably possible, discovery
of Electronic Documents should be in their Original Format unless the Court
orders otherwise.
h.
Subject to the obligation to provide
Electronic Documents in the Original Format, Electronic Documents shall
generally be made available for inspection in a form which allows the party
receiving the documents the same ability to access, search, review and display
the documents as the party giving discovery;
i.
In making discovery where the metadata
is part of the Original Format it should be provided as part of discovery
unless the Court orders otherwise; and
5.
A party who provides discovery without
first discussing with other parties how to provide discovery in accordance with
the terms of this Practice Direction may be required to meet the cost of that
discovery at its own expense and/or may further be required to carry out further
searches for documents at its own expense.
Preservation of Documents
6.
As soon as a party is aware that litigation
is contemplated, that party must immediately take all reasonable steps to ensure
that potentially discoverable Electronic Documents are preserved.
7.
As soon as a party retains a legal
representative, that legal representative must inform its client of the need to
preserve all potentially discoverable documents including Electronic Documents.
8.
The party and its legal advisers in
either case shall take all reasonable steps to ensure that no potentially discoverable
document is destroyed pursuant to any document retention policy or otherwise in
the ordinary course of business.
9.
The party and its legal advisers may be
required to provide information to the Court and the other parties to
demonstrate it has fulfilled its obligation to preserve documents by reference
to the questions set out in schedule 1 to this practice direction.
Obligations prior to the first directions hearing and the provision
of information
10. Each
party and any legal representative for that party must, before the first
directions hearing:-
a.
provide to all other parties information
about their intended approach to discovery of Electronic Documents; and
b.
as far as is reasonably practical enter
into discussions to seek to agree on how electronic discovery is to be
provided.
11. Where a
case involves or is likely to involve significant quantities of Electronic
Documents or where the majority of the discovery is likely to involve
Electronic documents, the parties shall provide information to each other prior
to the first summons for directions in relation to the possible scope and
extent of discovery in the proceedings by reference to the matters listed in
the schedule to this Practice Direction
12. In
particular, in complex cases discussions on how discovery is to be provided should
begin at the earliest possible stage.
Consideration should also be given to seeking orders for the provision
of discovery at an early stage of the proceedings.
13. The
information to be provided in discussions should cover the following matters:-
a.
the categories of Electronic Documents
within the parties' control, the computer systems, electronic devices and media
on which any relevant documents may be held, a party’s storage systems and
document retention policies;
b.
the proposed scope of the search for
Electronic Documents, and why the scope is reasonable;
c.
any tools and techniques proposed to be
used to reduce the burden and cost of disclosure of Electronic Documents,
including:-
i. limiting
disclosure of documents or certain categories of documents to particular date
ranges, to particular custodians of documents, or to particular types of
documents;
ii. the use
of agreed Keyword Searches;
iii. the use
of agreed software tools;
iv. the
methods to be used to identify duplicate documents;
v. the use
of Data Sampling;
vi. the
methods to be used to identify privileged documents and other non-disclosable
documents, to redact documents (where redaction is appropriate), and for
dealing with privileged or other documents which have been inadvertently
disclosed; and
d.
the use of a staged approach to the
disclosure of Electronic Documents;
e.
how Electronic Documents, have been and will be
preserved;
f.
the formats in which Electronic
Documents are to be provided and exchanged on inspection and the methods to be
used;
g.
the proposed basis of charging for or
sharing the cost of the provision of Electronic Documents, and whether any arrangements
for charging or sharing of costs are final or are subject to re-allocation in
accordance with any order for costs subsequently made; and
h.
whether it would be appropriate to use
the services of a neutral facility for storage of Electronic Documents.
Searching for documents
14. The
extent of the reasonable search required for Electronic Documents shall be
determined having regard to the general factors listed in Practice Direction RC17/07
at paragraph 10 relating to discovery together with the following:-
a.
the accessibility of Electronic Documents;
b.
the location of Electronic Documents;
c.
the likelihood of locating relevant Electronic
Documents;
d.
the cost of recovering any Electronic Documents;
e.
the cost of providing inspection;
f.
the likelihood that the Electronic Documents
could be materially altered in the course of recovery, disclosure or inspection;
g.
the availability of documents or
contents of documents from other sources; and
h.
the
significance of any document which is likely to be located during the search;
15. By
reference to the issues between the parties, it may be reasonable to limit
searches for Electronic Documents to part only of a party’s systems to
documents during a defined period, to documents falling into a particular
category or categories, and/ or to documents held in a particular location or
locations or a combination of any of the above;
16. Discovery
may also be limited in respect of Electronic Documents that are not reasonably
accessible. The onus will be on the
party alleging that documents are not reasonably accessible to provide evidence
in support of its position;
17. A party
proposing to make discovery by use of Keyword Searches or other automated
search techniques should be able to explain:-
a.
why the proposed searches or techniques
more likely than not will result in the most relevant documents being
disclosed;
b.
why they will not lead to excessive quantities
of relevant documents being produced,
c.
how key word searches or other automated
searches might be supplemented with manual reviews;
18. Any
party should be ready to explain to the other party and to the Court the
methods it intends to use or has used. The
information provided should be by the lawyer with the responsibility for the
disclosure process and any individual expert retained to assist on the
disclosure process;
19. Where a
party seeks disclosure of additional metadata from that contained in documents
provided in Original Format, the party seeking disclosure of additional metadata
must demonstrate that the relevance and the materiality of the requested metadata
justifies the costs and burden of producing that metadata;
20. Parties
using document management or litigation support systems should be able to
explain whether metadata or other useful information relating to documents is
stored with the documents themselves.
21. The
parties shall use reasonable endeavours to cooperate in resolving any issue or
difficulties arising in the process of electronic discovery. In the event that such issues arise that
would in the reasonable opinion of any of the parties adversely impact the
timetable for discovery, including for example the collection of an excessive
number of Electronic Documents, the parties shall meet to discuss such problems
and seek to agree a way forward which is consistent with the objective of
ensuring that the process of electronic discovery is appropriate and concluded
in a timely fashion and at reasonable cost.
In the case of difficulty or disagreement, the matter should be referred
to the court for directions at the earliest practical date.
Affidavit of discovery
22. When the
affidavit of discovery is provided, the affidavit of discovery must identify
the processes followed by a party in providing Electronic Discovery.
23. The
Electronic Documents being disclosed should be set out in a single, continuous
table or spreadsheet, each separate column containing exclusively one of the
following types of Discovery Data:-
a.
discovery list number (sequential);
b.
date;
c.
document type e.g. letter, email,
spreadsheet;
d.
description of document (if not clear
from its title);
e.
author/sender and organisation where
relevant;
f.
recipient and organisation where
relevant; and
g.
discovery list number of any parent or
covering document.
24. Other
than for discovery list numbers, blank entries are permissible and preferred if
there is no relevant discovery date (that is, the field should be left blank
rather than state ‘Undated’);
25. Dates
should be set out in the alphanumeric form i.e. ‘dd/mm/yyyy’; and
26. Discovery
data should be set out in a consistent manner.
Provision of electronic copies of disclosed documents
27. The
parties shall co-operate at an early stage about the format in which Electronic
Documents are to be provided. In case of difficulty or disagreement, the matter
should be referred to the Court for directions at the earliest practical date,
if possible at the first directions hearing.
28. Save
where otherwise agreed or ordered, electronic copies of disclosed documents
shall be provided in their Original Format, in a manner which preserves
Metadata relating to the date of creation of each document.
29. The
parties shall provide any available searchable versions of Electronic Documents
with the original. A party may however
choose not to provide searchable versions of documents which have been
redacted. If searchable versions are
provided, they are provided on an ‘as is’ basis, with no assurance to the other
party that the searchable versions are complete or accurate. Any searchable version shall comply with the
principle set out in paragraph 4.h of this Practice Direction.
30. Subject
to paragraph 31 below, if a party is providing in electronic form copies of
disclosed documents and wishes to redact or otherwise make alterations to a
document or documents, then the party redacting or altering the
document must:-
a.
inform the other party that redacted or
altered versions are being supplied; and
b.
ensure that the original un-redacted and
unaltered version is preserved, so that it remains available to be inspected if
required.
31. Paragraph
30 above does not apply where the sole alteration made to the document is an
alteration to the Metadata only as a result of the ordinary process of copying
and/or accessing the document for the purposes of providing discovery in
compliance with this practice direction.
Costs
32. Save
where otherwise agreed or ordered, all costs and expenses associated with
electronic discovery shall be for the account of the relevant party on whose
behalf they are incurred, including for the avoidance of doubt any charges by a
third party service provider in respect of:-
a.
the collection, processing, loading and
hosting of data;
b.
licence fees payable on a per user basis
in respect of the document review platform, database and/or server;
c.
training, project management set-up and
ongoing technical support in respect of the document review platform;
33. Nothing
in the foregoing shall prevent a party from claiming and recovering its costs
(including the costs of electronic discovery) in the normal way at the
conclusion (or earlier if appropriate) of the proceedings.
This Practice
Direction will come into force on 1st June 2017
Schedule 1
- What date range do you
propose that searches for Electronic Documents should cover?
- Who are custodians of
your Electronic Documents?
- What types of relevant electronic
communications were in use during the date range?
- If you do not intend to
search any category or type of relevant communication please explain why
not?
- Are back-ups or archive
of any relevant Electronic Documents available and if so where are such
back-ups located?
- Is it your intention to
search back-ups or archives?
- Do you consider the key
words should be used as part of the discovery process?
- If so you should
identify the key words proposed to be used.
- You should also explain
the extent to which key word searches have been or are intended to be
supplemented by any other form of search identifying the processes to be
followed, by such other review.
- For cases with significant
amounts of Electronic Documents you should consider whether other
automated searches or techniques such as a technology assisted review are
to be used as part of the process of discovery.
- You should explain the likely cost of
providing discovery of Electronic Documents by reference to the methods of
providing discovery you intend to adopt.
- You should provide
details of the software processes and methods intended to be used to
provide discovery of Electronic Documents.
- You should identify any
particular difficulties you envisage in relation to the provision of
discovery including any issues relating to documents that may be
particularly difficult to access, for technical reasons or where concerns
about data protection obligations might arise.
- You should explain your
document retention policy.
- You should set out how
you propose to provide the Electronic Documents to the other party or
parties.
- You should explain
whether you intend to provide discovery of documents in their original
format and whether or not you intend to disclose metadata.
- If you are seeking the
metadata of Electronic Documents which is not intended to be provided, you
should set out why such metadata is required.