Case Law

The volume of ESI made it difficult to determine the scope of the “reasonable search”; it is not an answer to say that the search should not be carried out at all

England and Wales

Gavin Goodale v Ministry of Justice [2009] EWHC B41 (QB), November 5, 2009 This case involved an action by opiate dependent prisoners who asserted that the Ministry of Justice had deliberately failed to provide a humane regime for the maintenance of their conditions. The prisoners were publicly funded and the costs of the case were therefore of particular concern. Central to the claim was the alleged knowledge by the defendant that a “one size fits all” treatment plan would cause pain and suffering to the claimants. The claimant sought disclosure of ESI for four key individuals who had worked at the defendant and had been critical of the defendant’s treatment policies on opiate dependent prisoners. The defendants did not want to carry out a search for ESI arguing it would be disproportionate in view of the time over which the ESI might be relevant and the large number of record-keepers whose records would need to be considered to carry out the exercise. They produced some provisional statistics as to the quantity of documents that they would need to search and argued that there should be no disclosure of ESI at all. The court held that ESI should be disclosed because there was a high probability that paper documents were not going to reveal the actual communications containing the thoughts and opinions and evidential experience of employees of the defendant which were going to be most helpful to the claimant. In determining what documents are disclosable, the court noted that the test to be applied to electronic documents is the same as the test applied to paper documents. Although the volume of ESI made it difficult to determine the scope of the “reasonable search,” the court said it was not an answer to say that an ESI search should not be carried out at all. The Ministry was obliged to conduct a reasonable search for documents, including ESI, and the court deployed its case management powers to define the issues, identify key custodians and potential sources of evidence, and specify a reasonable date range.

Keywords: Edisclosure, reasonable search, scope of the search, case management, proportionality, staged approach, keyword searching, back-up tapes, prioritisation, technology assisted review, electronic documents questionnaire