electronic documents

For the purposes of litigation in England, Part 31 of the Civil Procedure Rules (“CPR”) defines a "document" as “anything in which information of any description may be recorded”. The definition ignores the media upon which the information may be stored. Consequently, (1) it is irrelevant whether the document is stored in on paper, DVD, CD-ROM, USB flash drive or hard drive or other media upon which information may be recorded. Indeed, information may be inscribed on something other than paper or electronic media, such as stone, wood or metal. A copy of a document is anything onto which information in a document is recorded.

Broad Meaning

The definition of documents is wide and has been framed in this way for the purposes of capturing electronic documents. It encompasses emails, databases, Word documents, facsimile transmissions, electronic files, tape recordings, instant messages, photographs (whether in a visible light spectrum or not), films, plans, recorded conversations and indeed any information which may be recorded. In the context of electronic evidence, "documents" therefore encompasses evidence such as log files, system and program files, barcodes, magnetic strips on credit cards, voice data, temporary and cache files, meta-data, whether illicitly obtained or not.

Each document which is not identical is separately disclosable (see below) in legal proceedings, when it contains an obliteration, modification, or other marking or feature which a party intends to rely upon or which affects another party’s case. In addition, it is irrelevant whether the document has been deleted on a computer system – if the document remains on the hard drive (and remains recorded) it retains its status of a document for the purposes of CPR 31.14 despite the fact that it is no longer remains readily accessible to a user of the computer system.

Meaning of Disclosable

This definition of documents has a wide ranging impact for a party’s disclosure obligations in English legal proceedings, however it has limits. Each of the parties to litigation are under a duty to disclose documents (1) upon which it relies, (2) adversely affect its own case, (3) support or adversely affect the case of any other party to the litigation, and (4) are required to be produced by a practice direction.

The documents falling within the description of paragraphs (1) and (2) above are readily collated by a litigant from the documents within its possession, custody or control. When assessing whether a document is required to be produced for the purposes of paragraph (3) above, reference must be made to the legal issues in dispute between the parties.

The issues in dispute are those allegations which are not admitted by the opposing party defined by the particulars of claim, defence and response to requests for further information and clarification. Thus a knowledge and assessment of the issues in dispute, and the law applicable to the case at hand are desirable. It is the statements of case which play the central role in defining the issues in dispute for the purposes of determining documents which support or adversely affect the case of another party to the litigation. However, documents relating to irrelevant statements in the pleadings are not disclosable.

Limitations on Disclosure

The Civil Procedure Rules impose onerous obligations upon litigants to give standard disclosure, however the obligations are not to be interpreted as oppressive. In order to avoid an oppressive application of disclosure obligations, the court may order on the application of the parties:

1. The amount of documentation which would ordinarily be produced by the parties be reduced having regard for the complexity of the dispute;
2. Categories of documents to be excluded from disclosure, for instance those which the parties have exchanged during the course of negotiations and disputes;
3. Documents exchanged during pre-action correspondence where such disclosure is extensive;
4. The cost of providing standard disclosure may be disproportionate to the value of the dispute or some other criterion.

Agreement between the parties may be reached to reduce the scope of disclosure to limited categories of documents or those specifically applied for. Agreement such as these must be filed with the court.