E-disclosure requires preservation, preparation & proportionality, say Julian Miller & Sara Robertson
It has been 18 months since the introduction of the electronic disclosure practice direction PD31. Since then there have been several cases setting out the implications for practitioners and their clients.
There are three key considerations litigants and their advisers must address. A failure to do so may result in adverse costs orders.
Preservation
Paragraph 7 of PD31 provides: “As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include electronic documents which would otherwise be deleted in the accordance with a document retention policy or otherwise deleted in the ordinary course of business.”
Good practice now requires that solicitors include an appropriate instruction in their retainer letters, but this will rarely be enough of itself. How often do clients read terms and conditions in full? At an appropriate stage early in any case likely to proceed to litigation, there must be a frank discussion with the client regarding e-disclosure. This
