Amongst my predictions for 2010, published on the website of the Society for Computers & Law on 21 December, was this one:
Another side-effect of the Earles judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.
This prediction has started to come good before the year is out, with the publication in today’s Times of a letter headed Data Destruction from Peter Hibbert, Associate Professor at the College of Law in Birmingham. He refers back to Grania Langdon-Down’s article of 17 December E-disclosure: how good is your filing system? which I wrote about on the same day.
The judgment of HHJ Simon Brown QC in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009) is notable for being grounded both in old-fashioned principles of evidence as required by a fact-finding judge and for its acknowledgement that electronic sources of data are both inevitably required to be disclosed and capable of being found by the technology which is now available. That affects both sides of the proportionality equation – the balance of evidential value versus the costs of extraction.
It also opens the door to the debate about the duty of a business to keep the data which will be required for proceedings in which Profesor Hibbert’s letter may prove to be just the opening shot. It was correspondence with Peter Hibbert which gave rise to my SCL prediction about the law of preservation. My prediction about challenges to disclosure statements and demands for particularisation of document destruction, arose from the contribution to that correspondence from Charles Hollander QC, the author of Documentary Evidence.
Three points matter here. One is Professor Hibbert’s point itself, about the “balance … to be struck between the legitimate right to destroy archives of data and the need to protect parties to prospective litigation”. One is the welcome airing of this neglected subject in the main-stream of public debate and in the higher levels of lawyerly and legal-academic discussion. The last is the interweaving of two strands – the law and the technology which supports the practice of law. The law does not develop in an idealised bubble, and the duties which emerge from this debate will have regard to what is practicable and what is proportionate.
Let us go back what Judge Brown said in Earles at :
Since 2000 most key contemporaneous commercial documents are contained in Electronically Stored Information ["ESI"] – today over 90% of communications are recorded in that form – phone records, texts, e-mail, bank records etc. ESI are “documents” under the Civil Procedure Rules: CPR 31.4 and 31PD.2A. Accordingly, the rules for “Standard Disclosure” apply: CPR 31.6. i.e. “only” those documents that are “supportive” or “adverse” to each party’s cases. The abundance of this ESI in cyberspace means that potential litigants, in particular organisations such as Banks at the current time, need to anticipate having to give disclosure of specifically relevant electronic documentation and the means of doing so efficiently and effectively.
…and at …
an expert in information technology, either in house or a consultant, could easily have been instructed to retrieve ESI from various back up sources one would have thought but no such expert appear to have been instructed to do so. One expects a major high street Bank in this day and age of electronic records and communication with an in house litigation department to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation
It is not just major banks who are affected by this nor only large firms of solicitors. The duties of preservation – whatever they may be – and the rules of court apply to every party, and every party has electronic documents. What is proportionate will vary with the case. The skill lies not in being willing and able to use technology at every turn, but in being able to assess when it is right – that is, proportionate – to do so.
The scope of the duty to preserve, and the availability of the means to find that which matters out of what has been preserved, are of equal significance. They are basic obligations, not just a subject for those engaged in big litigation or for the advocates of technology.