Case Law

The parties were directed to hold a discussion, with the help of edisclosure consultants, about how edisclosure could best be achieved.

England and Wales

Digicel (St Lucia) Ltd v Cable and Wireless PLC [2008] All .E.R (D.) 226 (Oct) On October 23, 2008, three years after the 2005 amendments to the Civil Procedure Rules, a long-awaited decision was reported on the application of the rules, in the case of Digicel. The case deals with the scope of the reasonable search for electronic documents, key word searching, access to back up tapes, cost shifting and the importance of the parties’ co-operation with each other. The case concerned disputed access to a series of back-up tapes believed to contain email accounts of former employees. Standard disclosure had already been given. The court made it clear that what amounts to a reasonable search is ultimately a decision for the court, either before a search has been carried out or afterwards (as in the instant case) with the benefit of hindsight. Considering the factors specified in Civil Procedure Rule 31.7 and paragraph 2A.4 of the Practice Direction, the court ruled that controlled access to the backup tapes was appropriate. The parties were directed to hold a discussion, with the help of edisclosure consultants, about how this task could best be achieved (These factors now appear in para.21 of the revised Practice Direction 31B). This underscores the requirement in the Practice Direction that the parties should discuss electronic sources and request assistance from the judge, if difficulties arise, before the first case management conference.

Keywords: Reasonable search, keyword searching, collaboration, back-up tapes, expert evidence