In this article we consider whether new English court rules applicable to production of electronically stored information (ESI) can provide a useful reference point for arbitrators where the parties have failed to adopt any of the arbitration-specific proposals on ESI recently published by institutions such as the International Institute for Conflict Prevention and Resolution (CPR), the International Bar Association (IBA) and the Chartered Institute of Arbitrators (CIArb).
We also consider whether the proliferation of rules with respect to the production of ESI could lead to wider disclosure in arbitration processes, to the detriment of their efficacy and efficiency. Finally, we discuss whether the overall trend toward regulating the production of ESI would be unnecessary if the parties could be persuaded to resolve the issue through consultation and agreement.
DISCLOSURE OBLIGATION ON PARTIES TO LITIGATION IN THE ENGLISH COURTS
Generally, parties to litigation in England and Wales are only obliged to disclose documents on which they rely, documents that adversely affect their own case, documents that adversely affect or support the case of another party and documents required to be disclosed by a Practice Direction (CPR 31.6). This obligation applies equally to ESI as it does to physical documents.
Aligned to the duty of disclosure is a duty to search. CPR 31.7 states that a party is “required to make a reasonable search for documents falling within rule 31.6(b) or (c).” CPR 31.9(2) continues: “The factors relevant in deciding the reasonableness of a search include the following: (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document;1 and (d) the significance of any document which is likely to be located during the search.” Finally, CPR 31.7(3) states that where a party “has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.”
TREATMENT OF ESI DISCLOSURE: PRACTICE DIRECTIONS AND CASE LAW BEFORE OCTOBER 2010
Until October 1, 2010, the disclosure of ESI in proceedings in the courts of England and Wales was governed by the Practice Direction (PD) to Part 31 of the Civil Procedure Rules. Paragraph 2A of that PD set forth some principles as to liaison between the parties with respect to issues relating to the production of ESI. The paragraph was, however, expressed in permissive, rather than prescriptive, language: the parties “should” discuss and “should” cooperate, on the basis that it “may” be reasonable to search some or all of the parties’ electronic storage systems to satisfy the parties’ obligations under CPR 31.6 and 31.7.
The effect of the use of permissive language seems to have been that, in a number of cases, parties simply ignored the provisions of the Practice Direction. Instead of discussing and agreeing on an approach to the production of ESI, parties unilaterally conducted their searches and document productions. As a result, issues relating to the scope of such searches and productions often reached the courts not at an early stage (the PD expressing the view that disputes about the modalities of disclosure of ESI should be raised with the judge at the first case management conference), but much later in the proceedings.
