The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.

Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 十月 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations.

Given the state of modern technology, it should not be difficult to find such documents. There was no question of malicious concealment in this case, but if documents were missing then someone was to blame. Although there was no duty to keep documents prior to the threat of litigation, there was a serious risk of an adverse inference if it proved not possible to produce them. A proper search must be put in hand right at the outset.

The issue was not limited to banks or other commercial entities. The Baby P case (where drafts of critical documents were not produced until a new lawyer joined the Council and made a proper search) showed that public bodies similarly need to produce the documents to prove their case.

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