Evidence and disclosure - Electronic disclosure

Learning Outcomes

This article explains the principles and procedures surrounding electronic disclosure within civil litigation in England and Wales. After reading this article, you should understand the scope of electronic disclosure, the duties imposed on parties by the Civil Procedure Rules (CPR), particularly Practice Direction 31B, the concepts of proportionality and reasonable search in the context of electronically stored information (ESI), and the management of privilege in electronic documents. This knowledge will assist you in applying the relevant rules to SQE1 assessment scenarios involving the disclosure of digital evidence.

SQE1 Syllabus

For SQE1, you are required to understand the processes involved in the disclosure of documents, specifically including electronically stored information (ESI). Your knowledge should cover the duties parties owe regarding preservation and disclosure, the scope of searches required, and the application of privilege rules to electronic data. This understanding is essential for advising clients and managing the procedural steps in litigation.

As you work through this article, remember to pay particular attention in your revision to:

  • the definition and scope of electronic disclosure under CPR Part 31 and Practice Direction 31B
  • the duties relating to the identification and preservation of electronically stored information (ESI)
  • the concepts of proportionality and reasonable search in the context of electronic documents
  • the role and use of the Disclosure Report and Electronic Documents Questionnaire (EDQ)
  • the management of privilege and redaction in electronic disclosure
  • the impact of technology on the disclosure process.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under Practice Direction 31B, what is the primary factor governing the extent of the search required for electronically stored information (ESI)?
    1. The financial resources of the disclosing party.
    2. The agreement reached between the parties' IT departments.
    3. The principle of proportionality.
    4. The volume of data held by the receiving party.
  2. Which of the following best describes electronically stored information (ESI) for the purposes of disclosure?
    1. Only emails and word-processed documents stored on a company's central server.
    2. Any information recorded electronically, including metadata, emails, databases, and social media posts.
    3. Documents scanned into PDF format.
    4. Data stored exclusively on portable devices like USB sticks.
  3. What is the main purpose of an Electronic Documents Questionnaire (EDQ)?
    1. To provide the court with a final list of all disclosable ESI.
    2. To facilitate discussion and agreement between parties on the scope and methodology of electronic disclosure.
    3. To act as a substitute for standard disclosure lists in cases involving ESI.
    4. To apply for specific disclosure of electronic documents from the opposing party.

Introduction

The digital age has transformed the nature of evidence in legal disputes. Electronically Stored Information (ESI) often forms the bulk of relevant documentation in modern litigation. Electronic disclosure, or e-disclosure, is the process governed by the Civil Procedure Rules (CPR) for managing this digital evidence. It involves identifying, preserving, collecting, processing, reviewing, and producing ESI relevant to the issues in a case. Understanding the specific rules and practical considerations surrounding e-disclosure is essential for effective case management and compliance with court requirements.

This article focuses on the key principles governing electronic disclosure in England and Wales, particularly as outlined in CPR Part 31 and Practice Direction (PD) 31B.

The Legal Framework for Electronic Disclosure

CPR Part 31 sets out the general rules for disclosure and inspection of documents in civil proceedings. PD 31B supplements Part 31 by providing specific guidance on the disclosure of electronic documents.

Key Term: Electronic Disclosure
The process by which parties involved in litigation identify, preserve, collect, process, review, and exchange electronically stored information (ESI) relevant to the case, in accordance with court rules.

Key Term: Electronically Stored Information (ESI)
Information that is stored electronically, regardless of the medium or format. This includes emails, databases, word-processed documents, spreadsheets, presentations, social media content, voicemail, video files, and associated metadata.

PD 31B emphasises that parties should cooperate and discuss issues relating to electronic disclosure at an early stage. Key obligations include:

  • Duty of Preservation: Parties must take reasonable steps to preserve ESI which may be relevant, including suspending routine data deletion policies.
  • Cooperation: Parties are expected to cooperate in relation to electronic disclosure to ensure the process is efficient and cost-effective.
  • Disclosure Report: In multi-track claims (except personal injury), parties must file and serve a Disclosure Report detailing the ESI they hold and their proposals for disclosure.
  • Electronic Documents Questionnaire (EDQ): While not mandatory, the EDQ (Form N264) is a helpful tool to facilitate discussions between parties about the scope and methodology for electronic disclosure.

The E-Disclosure Process

The management of ESI typically follows a workflow designed to handle the volume and complexity of digital data.

Identification and Preservation

The first step is to identify potential sources of relevant ESI (e.g., servers, laptops, mobile devices, cloud storage, backup tapes) and the types of data they hold. Once identified, this data must be preserved to prevent loss or alteration. This often involves issuing a 'litigation hold' notice within an organisation.

Collection and Processing

ESI is collected using methods that maintain data integrity, including preserving metadata.

Key Term: Metadata
Data about data, providing context for electronic documents, such as creation date, author, modification history, and email recipient information. Metadata can be essential evidence.

Collected data is then processed to prepare it for review. This may involve filtering irrelevant data, removing duplicate files (de-duplication), converting files to a common format, and indexing the data for searching.

Review and Production

Legal teams review the processed data to determine its relevance to the issues in the dispute and to identify any documents subject to legal privilege. Technology-assisted review (TAR), including predictive coding, is often employed to manage large datasets efficiently.

Key Term: Predictive Coding
A form of technology-assisted review (TAR) where software uses algorithms, trained by human reviewers coding a sample set of documents, to predict the relevance of a larger dataset.

Relevant, non-privileged ESI is then produced to the opposing party in an agreed format, often electronically.

Proportionality and Reasonable Searches

The potential volume of ESI means that the scope of electronic disclosure must be managed proportionately.

Key Term: Proportionality
A core CPR principle requiring that the costs and effort involved in litigation steps, including disclosure, should be proportionate to the value, complexity, and importance of the case.

PD 31B explicitly requires parties and the court to consider proportionality when determining the scope of electronic disclosure. Factors include:

  • The number of documents involved.
  • The nature and complexity of the proceedings.
  • The ease and expense of retrieval of particular documents.
  • The significance of any ESI likely to be located.

Reasonable Searches

CPR 31.7 requires parties giving standard disclosure to make a reasonable search for relevant documents, including ESI falling within CPR 31.6(b) (adverse documents) and (c) (documents supporting another party's case). What constitutes a reasonable search for ESI depends on the factors listed under proportionality. It might involve searching specific date ranges, custodians, or using keyword searches, but the methodology should be carefully considered and often agreed between the parties.

Key Term: Reasonable Search
A search for disclosable documents (including ESI) that is reasonable in the circumstances, considering factors like the number of documents, complexity, cost of retrieval, and significance, as required by CPR 31.7.

Worked Example 1.1

A claimant company (C Ltd) sues a defendant company (D Ltd) for breach of contract concerning a software development project. C Ltd identifies that relevant emails might exist on the personal laptops of 50 former employees who worked on the project over five years ago. D Ltd requests disclosure of these emails. C Ltd estimates the cost of forensically collecting and reviewing data from these laptops would be £150,000. The total value of the claim is £75,000. How should C Ltd respond?

Answer: C Ltd should argue that the requested search is disproportionate under PD 31B. The estimated cost (£150,000) significantly exceeds the claim value (£75,000). C Ltd should state in its Disclosure Report (if applicable) or correspondence that it has not searched these laptops on the grounds of disproportionality, explaining the estimated cost and the potential limited significance of any documents likely found on such old devices belonging to former employees. The parties should discuss alternative, more proportionate search methods, perhaps focusing on key custodians or specific keywords on central servers.

Privilege and E-Disclosure

Protecting legally privileged material is a critical aspect of e-disclosure. The main types of privilege are legal advice privilege and litigation privilege.

Worked Example 1.2

During electronic disclosure in a commercial dispute, a junior lawyer at Firm A reviews a batch of emails produced by the opposing party, Firm B. The lawyer discovers an email clearly marked "Legally Privileged & Confidential - Advice from Counsel" attached to an internal message discussing litigation strategy. What should the junior lawyer do?

Answer: The lawyer should immediately stop reading the document and any related attachments, isolate the document(s), and inform their supervising solicitor. The supervising solicitor should then notify Firm B that potentially privileged material appears to have been inadvertently disclosed. Continuing to read or making use of inadvertently disclosed privileged material can lead to serious professional conduct issues and potential court sanctions. The parties may have a 'clawback agreement' in place to manage such situations.

Key Term: Clawback Agreement
An agreement between parties in litigation that allows for the retrieval of inadvertently disclosed privileged documents without waiving privilege.

Technology in E-Disclosure

Technological tools are indispensable for managing the scale and complexity of ESI. Key technologies include:

  • Processing Platforms: Software used to ingest, filter, de-duplicate, and index ESI.
  • Review Platforms: Software providing tools for searching, reviewing, coding, and redacting electronic documents.
  • Technology Assisted Review (TAR): Including predictive coding and concept clustering, used to prioritise and identify relevant documents more efficiently than manual review alone.

Parties are encouraged by PD 31B to discuss and agree on the use of technology, such as specific software or search methodologies (e.g., keyword lists, date ranges), to ensure the e-disclosure process is managed efficiently and proportionately.

Exam Warning

Be aware that simply using keywords may not constitute a 'reasonable search'. The appropriateness of keywords, search strategies, and the use of technology should be considered in light of the specific issues and data context of the case. Parties should be prepared to justify their search methodology to the court.

Summary

Electronic disclosure is governed by CPR Part 31 and PD 31B. Key duties include preservation of relevant ESI and cooperation between parties. The process involves identifying, preserving, collecting, processing, reviewing, and producing ESI. Proportionality is critical, balancing the scope of disclosure against the case's specifics. Parties must conduct reasonable searches for ESI. Legal privilege must be carefully managed, often using technology and clawback agreements. Technology plays a key role in efficiently handling large volumes of ESI, but its use must be reasonable and often agreed upon.

Key Point Checklist

This article has covered the following key knowledge points:

  • Electronic disclosure involves managing Electronically Stored Information (ESI) under CPR Part 31 and PD 31B.
  • Parties have duties to preserve relevant ESI and cooperate on disclosure processes.
  • The concept of proportionality is central in determining the scope of e-disclosure searches and production.
  • Reasonable searches for ESI must be conducted, considering factors like cost, volume, and significance.
  • Metadata associated with electronic documents can be important evidence and must be preserved.
  • Legal privilege applies to ESI; careful review and potentially clawback agreements are needed to manage privileged information.
  • Technology, including predictive coding, is often used to manage the volume and complexity of ESI, but its use must be justified and proportionate.
  • The Electronic Documents Questionnaire (EDQ) helps facilitate agreement on e-disclosure methods.

Key Terms and Concepts

  • Electronic Disclosure
  • Electronically Stored Information (ESI)
  • Metadata
  • Proportionality
  • Reasonable Search
  • Predictive Coding
  • Clawback Agreement
The answers, solutions, explanations, and written content provided on this page represent PastPaperHero's interpretation of academic material and potential responses to given questions. These are not guaranteed to be the only correct or definitive answers or explanations. Alternative valid responses, interpretations, or approaches may exist. If you believe any content is incorrect, outdated, or could be improved, please get in touch with us and we will review and make necessary amendments if we deem it appropriate. As per our terms and conditions, PastPaperHero shall not be held liable or responsible for any consequences arising. This includes, but is not limited to, incorrect answers in assignments, exams, or any form of testing administered by educational institutions or examination boards, as well as any misunderstandings or misapplications of concepts explained in our written content. Users are responsible for verifying that the methods, procedures, and explanations presented align with those taught in their respective educational settings and with current academic standards. While we strive to provide high-quality, accurate, and up-to-date content, PastPaperHero does not guarantee the completeness or accuracy of our written explanations, nor any specific outcomes in academic understanding or testing, whether formal or informal.
No resources available.

Job & Test Prep on a Budget

Compare PastPaperHero's subscription offering to the wider market

PastPaperHero
Monthly Plan
$10
Assessment Day
One-time Fee
$20-39
Barbri SQE
One-time Fee
$3,800-6,900
BPP SQE
One-time Fee
$5,400-8,200
College of Legal P...
One-time Fee
$2,300-9,100
Job Test Prep
One-time Fee
$90-350
Law Training Centr...
One-time Fee
$500-6,200
QLTS SQE
One-time Fee
$2,500-3,800
University of Law...
One-time Fee
$6,200-22,400

Note the above prices are approximate and based on prices listed on the respective websites as of May 2025. Prices may vary based on location, currency exchange rates, and other factors.

Get unlimited access to thousands of practice questions, flashcards, and detailed explanations. Save over 90% compared to one-time courses while maintaining the flexibility to learn at your own pace.

All-in-one Learning Platform

Everything you need to master your assessments and job tests in one place

  • Comprehensive Content

    Access thousands of fully explained questions and cases across multiple subjects

  • Visual Learning

    Understand complex concepts with intuitive diagrams and flowcharts

  • Focused Practice

    Prepare for assessments with targeted practice materials and expert guidance

  • Personalized Learning

    Track your progress and focus on areas where you need improvement

  • Affordable Access

    Get quality educational resources at a fraction of traditional costs

Tell Us What You Think

Help us improve our resources by sharing your experience

Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

Saptarshi Chatterjee

Saptarshi Chatterjee

Senior Associate at Trilegal