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Electronic Disclosure

It is a general requirement of legal proceedings that all documents relevant to a case be disclosed. A failure to do so at the appropriate time can have serious negative costs implications. This is generally well understood but the part that is less carefully considered is just how wide the disclosure obligation is, and just what that can mean in the modern information age.

Agents, landlords and tenants communicate in a wide variety of ways. They frequently email one another; send text messages, and even use twitter, Facebook and other social networking systems. In addition, it is now common for telephone calls to be recorded and all post to be scanned as electronic documents.

Rule 31.4 of the Civil Procedure Rules defines a document as “anything in which information of any description is recorded”. This definition is wide enough to cover all of the above categories of communication. In any case where disclosure is required, such as a disrepair claim by a tenant, it would potentially be necessary to disclose all such communication between the parties where it concerned the matters at hand. Many agents can do this easily for letters, some can do it in relation to emails, few are able to do so in relation to text messages and other forms of electronic records. It can also be difficult to generate the information quickly and in a reasonably accessible format.

When keeping data in electronic formats it is important to also consider the need for future searching of that data. Leaving all emails in an email application does not deal with the necessity of backing it up and leaves you at the mercy of the (often poor quality) search functionality of the email application you use. Printing out all emails and placing them on a paper file removes the ability to search these documents save for the tedious, error-prone, and expensive method of reading everything.

It is important for businesses who wish to make use of the power of electronic systems to understand that the prodigious amounts of data these systems produce must be kept, logically organised, and made available for searching in connection with litigation. While it is always unattractive to spend money on data management systems during an economic downturn it should be remembered that it is always best (and a lot cheaper) to organise data before it is generated and that software companies are feeling the squeeze too and may well be prepared to offer attractive deals.

One Comment

  • Nearly Legal 19th December 2009 at 12:14 am

    Good post. I often act for tenants in disrepair cases and landlords’ disclosure is frequently very poor, with obvious holes and absences – messages referred to in disclosed documents, tenders or quotes referred to in repair records, email records where we know email was used etc. etc. are often missing, without explanation. It just invites an application for specific disclosure couched as an ‘unless’ order. When I am acting for a tenant,I love it, but from the landlord’s perspective it is so much better to have given full disclosure to begin with…

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