E-mail is now the focus of everyday commercial life. It is the routine means of corporate communication and delivery of legal advice. Letters and faxes are, like the telex, increasingly marginal as records of transactions, disputes and legal advice.
The culture of dispute resolution systems nevertheless remains focused on documentary analysis. The institution of discovery (now known as “disclosure”) was developed as a way of getting to the truth through documents. Although the process received a thorough ovehaul and modernisation in the Civil Procedure Rules 1998, the reforms did not really focus on the rapid rise to pre-eminence of electronic forms of communication.
It follows that the disclosure system is ill-equipped to cope with the way in which the raw material of litigation is now formatted. It is likely that most litigants fail to get anywhere near performing e-mail disclosure adequately. And modern systems of document management through databases and imaging can both hide and exacerbate the problems.
Why E-mail is Challenging
When you are trying to gain an understanding of key communications and to process them through the disclosure system, there are a number of significant factors which make e-mail more problematic than old-fashioned correspondence:
- e-mail is computer-based, not paper-based
- e-mail is easier to create and disseminate than paper-based messaging
- each e-mail message incorporates previous messages.
The latter factor is such a well-recognised fact of life and is so well-used that the difficulties to which it gives rise in the ordinary disclosure process are rarely recognised. The standard interface “Microsoft Outlook” contains the roots of the problem. In the “Tools” menu, under “Preferences” and “E-mail options”, is the facility to “include and indent original message text”. That is what most people do. Yet, however amazingly convenient this might be, it leads to much potential confusion. Each message contains the entire thread under consideration. Each printout of a single message can be many pages long. A series of printouts contains the same message many times. Each appearance may have a different significance. To understand a message and analyse its meaning, you need to know its history and context. This is, of course, also the case with a single paper communication but the e-mail process generates greater complexity.
The second characteristic of e-mail correspondence is the extreme ease with which records can be created, states of mind recorded and adverse positions committed to. It is much easier to tap away at a computer than to write a letter but the result is anything but temporary. Further, e-mail lends itself to being copied into substantial distribution lists. Copies are made and circulated, whether apparent on the face of the transmission or “blind”. When added to the facilities for forwarding and copying entire “threads”, the scope for proliferation of information and knowledge is vastly increased. When issues in commercial disputes turn on the extent of the knowledge of a particular individual, and whether that particular individual in fact read, or was aware of, the contents of their e-mail box, the scope for investigation is vast indeed.
There is one characteristic which particularly differentiates e-mail correspondence from conventional correspondence. It is that the effective focus for its creation and retention is the computer memory, not the paper file. E-mails can be, and are, printed out in great bulk, whether for storage or for analysis purposes, but the printouts do not reflect the true nature of the records which have been created. A corporate e-mail system will record its messages on a mail server, back-up disks, and individual hard disks. Users of individual computers will organise their inboxes in different ways and create filing systems of great sophistication. Searches must be made through general inboxes and each individual’s personal filing system must be understood. Even dedicated mailboxes may have missed the filing of general incoming or sent e-mails. Idiosyncratic rules established by the user for the management of his e-mail traffic will have some effect on what is disclosed or printed out. Each computer in the organisation will have its own records and the formulation of those records may have some significance to the task of documentary analysis and the ability of lawyers to make adequate disclosure.
Individuals receive and send far more e-mails in a day than was ever the case with memos and letters. They can be deleted from the mailbox and the recycle bin but they remain available to the administrator and will remain disclosable documents so far as the court is concerned.
As well as storing ordinary messages, modern IT systems also store information about documents which may be of extreme relevance: when they were created and amended, who worked on them and indeed who looked at them.
In these circumstances, conducting a search for relevant e-mail and other electronic records and an assessment of their significance is obviously going to be both time-consuming, expensive and prone to error. Yet finding the “killer” e-mail and retrieving it from millions of deleted e-mails on a back-up tape may be key to success or failure in a court case. The technical resources required may well be beyond the average lawyer but, even when purely legal skills are deployed, the process of analysing history, identifying issues and producing support for arguments is much more difficult and challenging.
E-mail and the Civil Procedure Rules
How does this fit in with the practical conduct of litigation? The rules and procedures for disclosure are set out in Part 31 of the Civil Procedure Rules 1998 and its associated Practice Direction. It is made clear that “document” means anything in which information of any description is recorded and “copy” means anything onto which information recorded in the document has been copied, by whatever means and whether “directly or indirectly”. This clearly includes the electronic recording of e-mail traffic on individual hard disks, mail servers and back up tapes.
Whilst it is made clear that a party need not disclose more than one “copy” of a document, those copies which contain modifications, obliterations or other markings or features which adversely effect a party’s case or support another party’s case must be treated as separate documents. Issues may therefore arise as to what members of circulation lists have done to documents.
The key features of the modern disclosure process, even when only so-called “standard disclosure” is involved are as follows:
- the “reasonable search”
- the “list”.
The first of these is an “intellectual” task. The second is a “mechanical” task. Yet the implications of the two are often confused.
Searching
The duty of “search” is subject to a test of reasonableness taking into account factors such as the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval of any particular document and the significance of any document which is likely to be located during the search. The Practice Direction stresses that these factors are governed by the overriding (but fairly elusive) principle of “proportionality”.
In order to conduct any such search and identify any such document, the person responsible for the exercise (and ultimately for the necessary “disclosure statement” which needs to be made in the formal list) must understand the issues and make an assessment of the significance of each document in order to determine its status for the purposes of disclosure. This is the intellectual challenge. For the reasons stated above, the nature of e-mail greatly increases the practical difficulties involved. These difficulties arise both from the number and location of documents to be searched and the means of getting access to them.
Listing
The relevant part of the CPR says that the list must identify the documents in a convenient order and manner and as concisely as possible. The accompanying Practice Direction requires documents to be listed in date order, numbered consecutively and given a concise description, save where documents fall into a particular category where they may be grouped and numbered without being individually described.
The two rival and respected textbooks on the topic appear to take slightly different views of
the nature of the obligation:
“A list of documents in respect of individual documents should normally
(a) list the documents in date order, numbering them consecutively,
(b) provide a concise description of each document (e.g. letter from a – b) and
(c) state the date borne by each document or to be attributed to it.”
(Matthews & Malek, Disclosure, 2001, p121)
“It is suggested that, consistent with the emphasis on avoiding excessive or unnecessary disclosure under the CPR, the Courts may be willing to permit compendious descriptions more readily than was previously the case”
(Hollander & Adam, Documentary Evidence, 2000, p92).
Whilst the duty of search is subjective and requires evidence of some sort of analytical skills, the listing process can, in theory, be carried out automatically. Modern software enables listing process be carried out mechanically and comprehensively. All that is needed is identification codes and a computer program. With a little bit of human input, a massive list can be generated and printed which looks impressive. However, it will only really be evidence of the industry of the computer, not the forensic skills of those making the disclosure. This produces a convincing but misleading impression that the computer system has done the job for you and that it has understood and actively managed the issues.
It would clearly be possible to organise all e-mails deemed to be relevant, whatever past threads of previous e-mails they contained, sort them into a sub-directory of a mail box, order them by date, time and recipient and simply print out and reproduce that report for the purposes of the list. Once again there would be an impressive list in terms of paper produced to comply with the Practice Direction from the mechanical side of the process but the limitations on the analytical side are fairly clear.
Practical Steps for E-mail Disclosure
The first thing to realise is that, given the limits of proportionality requirements, the goal of a perfect search and assessment exercise will always be slightly out of reach. Even in a complex, high-value case, you may not get to the point where you have analysed every mailbox, every computer and every storage or back-up record.
Proportionality is such an important and such an elusive concept that, in order to introduce the courts to the problems, the limits to the boundaries of the reasonable search should be discussed between the parties at an early stage. Standards can be formulated by agreement. Particular individuals can be identified and their computer records inspected. The Civil Procedure Rules actively require co-operation and joint consideration of proportionality to assist the court in achieving justice. Since the court is the ultimate case manager, it should understand the issues and determine the scope of the exercise if the parties cannot agree.
More attention than may currently be the case should be paid to the “disclosure statement” which CPR 31.10 requires to be signed by a responsible executive of the party giving disclosure. The statement should set out the extent of the search made. Where there are practical difficulties, where the issue of proportionality may be involved or where challenges might be expected, this statement will require careful preparation and drafting.
Once the search has been implemented and concluded, you will end up with a pile of printed out paper which you may want to put back into some sort of electronic form. You should not think in terms of overall chronologies. You will have to think in terms of the computers which generated the mails, structure them appropriately and then organise them chronologically or by issue. Given the pace of e-mail generation, it will not just be dates that are important but times. Of course inconsistencies in time stamping between different mailboxes may well turn out to have some significance.
Finally, it may be appropriate to build in some reference to the e-mails that are copied and appear in other e-mails; they will be listed once for their main appearance but it may be desirable to produce some cross-reference to them when they appear in a “supporting” role.
Conclusion
Once you have conducted a full analysis and have gained a full understanding of relevant e-mail correspondence, you will be able to satisfy your disclosure obligations more than adequately. However, the nature and characteristics of e-mail transactions makes that a daunting prospect.
The problem is not the lack of capability of lawyers to do it, given time and resources, it is the risk that their efforts will be accused of lacking the elusive attribute of proportionality. A court may assume that a necessarily complex task could have been accomplished in less time and with the same ease as listing conventional correspondence. The court will need to be educated by technologically aware practitioners.
At the same time, modern computer programs enable convincing looking “lists” to be produced of all sorts of marginally relevant documents and it will appear, meretriciously, that disclosure obligations have been fully satisfied. That will be a misapprehension and we must be alert to see that technology does not pull wool over the eyes of understanding. We must ensure that understanding is aided by technology.
Richard Harrison is a partner in Laytons, London.
