12 Steps to ensuring good evidential quality of email
Litigants in this country are required by law to give disclosure of electronic documents. This process is often called ‘e-discovery’. The obligations are found in the Civil Procedures Rules (CPR). litigants that fail to give proper disclosure are exposed to serious sanctions.
The law takes disclosure seriously because it is one of the cornerstones of civil justice systems. The law generally prefers a ‘cards-up’ approach to the resolution of disputes, albeit with exceptions. However, while the spirit and intention of the rules cannot be derided, the fact remains that the process of e-discovery can be an onerous obligation, particularly where the litigant and the lawyer are working in a ‘fractured’ environment and particularly where emails are involved.
The nature of a ‘fractured’ environment is one where electronic documents are not properly managed resulting in a loss of control. A fractured environment causes electronic documents to be used and stored erratically, the provenance of electronic documents might be unclear, rules on retention and deletion might be user-defined rather than organization-defined, and there might be problems of considerable duplication.
A fractured environment is detrimental to electronic documents and if litigation touches such an environment the e-discovery process is inevitably more complex, more time-consuming and more expensive than in cases affecting organizations with properly managed data systems. Moreover, the litigation may be less efficient, in the sense that important documents can be overlooked, which can weaken cases and, ultimately, lead to failure when success might otherwise have been more likely and the more just result. Another risk of a fractured environment is that legally privileged documents could be disclosed by mistake. Even worse a fractured environment might result in the withholding of documents that assist the other side, which can give rise to accusations of concealment, which is a very serious charge.
litigation is not the only reason why organizations should take control of their electronic documents; there are many regulations that require the long-term retention of documentary records and their production to regulators during regulatory proceedings and investigations. In a fractured environment, organizations run the risk of breaching these regulations.
This White Paper summarizes the author’s experiences of litigating in fractured environments, particularly as they pertain to email. In light of these experiences, it is the author’s opinion that potential litigants are always best advised to gain control of their email systems and because email is a technological issue, this requires technological solutions. This White Paper also identifies some key regulations that require the retention of documentary records and their production to regulators.