QCR Spring 2019: What information about search methodology must be disclosed?

Taylor v Van Dutch Marine - [2019] EWHC 324 (Ch)

Facts

The case relates to a judgement on the application of the claimant in respect of disclosure by some of the defendants, who were added to the underlying claim. The claim arises out of two loans given by the claimant to defendants.

The defendants were ordered to give standard disclosure under CPR r31.  The claimant complained that Form N265 (the List of Documents) had not been completed properly and applied to court for a further order.

The main issue raised by the claimant was that the defendants had failed to explain the search parameters used or methodology applied (dates, locations and categories of documents). For example, there had been no explanation as to how emails had been harvested and assessed for relevance. No Electronic Disclosure Questionnaire (Form N264) had been supplied either.

The defendants countered that they had complied with their disclosure duties by stating in the disclosure statement that they had carried out a reasonable and proportionate search.

Judgment

The defendants' argument was rejected by Master Clark.

Master Clark accepted the claimant's argument that "the disclosure list should enable the court and the opposing party to evaluate the adequacy of the search carried out. Disclosure is a transparent, not an opaque process. This is clear from CPR 31.6(a), which requires a party in their disclosure statement to set out the extent of the search which has been made to locate documents which they are required to disclose".

He was also critical of the failure to complete the EDQ (which is not a compulsory document): "Much of the time and expense incurred in respect of disclosure in this case could have been avoided if the Additional Defendants has completed EDQs at an early stage". The master set out the various matters which must be included in a disclosure list, such as the location of documents, the identity of third parties who have relevant documents under the disclosing party's control, custodians, date ranges and keywords.

He also held that it was not sufficient to refer as the defendants did, to the "cloud" and "cloud facilities". Any cloud based storage should be identified by reference to the storage provider and the name (and user ID) of the account holder, as well as to clearly identify the types of documents held in "cloud" storage.

He also said that the requirement to set out whether, and to what extent, documents are irretrievable due to their loss or destruction, is often overlooked but is important. Accordingly, it is not sufficient in Form N265 to simply leave blank the box dealing with documents no longer in the disclosing party's control.

Comments

This judgement is a reminder that disclosure must be a transparent and co-operative process. It is not a procedural step to be used to try to gain an advantage in litigation. However the recent introduction of the mandatory Disclosure Review Document under the Disclosure Pilot Scheme should reduce the need for applications such as the application made in this case.