In-house counsel are under pressure to protect against e-disclosure slip-ups, says Deborah Blaxell
The imposition of sanctions for the mismanagement of electronically stored information (ESI) has been commonplace in the US for some time. Earles v Barclays Bank plc [2009] All ER (D) 179 (Oct) demonstrates that similar attitudes are beginning to transgress national boundaries.
Earles v Barclays Bank plc revolves around a relatively straightforward factual dispute:
l Whether the defendant bank received certain instructions from the claimant, a customer of the bank, either verbally, by telephone, or by computer.
l The claimant alleged that a number of funds transfers were made by the defendant in breach of mandate, and denied that certain alleged phone calls and e-mails took place.
His Honour Judge Simon Brown QC summarised that: “…The resolution of the primary issue appears beguilingly simple. Were telephone calls or e-mails made on each of the 5 occasions and, if so, what was said or written?”
The judge was content that, when conducting the disclosure exercise, the lawyers had acted in good faith and were not driven by a desire to evade the court
