An updated version of the Technology and Construction Solicitors Association, The Society for Computers and Law and the Technology and Construction Solicitors Association e-disclosure protocol (the ‘Protocol’) was published on 9 January 2015 to be used in recording the decisions between the parties on e-disclosure. The Protocol now states the following.
- The parties are required to identify any documents outside the jurisdiction, which are not reasonably accessible or which no longer exist. The parties can agree to use computer forensics or otherwise to locate deleted documents.
- .The parties must confirm they have taken steps to preserve potentially disclosable documents above.
- Documents should be collected in their native format and those that cannot be collected in the native format should be identified. The parties can agree to use a shared service provider. They can also agree whether hard copy documents will be made available for inspection or if they will be scanned and made searchable. The parties should agree on the chosen approach to disclosure in accordance with CPR 31.5(5) or they must explain why an approach could not be agreed.
- The parties must confirm they will keep a detailed record to provide a suitable audit trail for what process has been applied to each category of document, including a detailed record of the methodology and logic used to remove documents from the collection. The parties confirm that those documents which are excluded will not be discarded and will be secured and kept separate.
- The parties must agree the date ranges for searches and any filters. Any filter list can be reviewed and refined if necessary following party discussions. Any automated searches and filters will include attachments to emails, compressed and embedded files and imaged text. The parties will provide details of any documents which are unlikely to respond to the filters chosen.
- Any documents or file types to be excluded from disclosure should be listed. The parties will take steps to ensure that duplicated documents are removed from the documentation.
- The parties agree that after the application of processing and reduction, they will list categories of documents that need not be reviewed before disclosure and/or will (to the extent agreed) be reviewed before disclosure to ensure the documents do fall within the scope agreed. If the parties do not categorise the documents at the time they agree to do so after the application of processing and reduction. The parties must set out the review methods which the parties intend to employ.
- The parties are free to carry out further reviews of the categories of documents to remove documents outside of the agreed scope.
- The parties confirm that documents should be provided in their native format, where possible, and with available metadata. Emails in multiple formats will be converted to a single format and all PDF’s will be searchable and contain coded information. The parties must identify any documents using non-standard software which may present difficulties.
- The parties agree to either (i) each prepare the List of Documents verifying the e-data being provided and listing privileged documents by category within or (ii) in the case of court form N265 being varied, to attach the List of Documents at the time setting out the required fields of information for each document or (iii) to dispense with a List of Documents.
- The parties have the option to agree to provide a List of Privileged Documents, to provide disclosure in stages, or to provide a date on which the List of Documents will be served. The parties must agree a timescale for copies of documents to be provided following exchange of the lists.
- As a minimum all media will be provided in encrypted form and on appropriate media (portable hard disk drive, USB stick, DVD or network transfer).The parties must take reasonable steps to ensure the data is useable and, if not, to use reasonable endeavours to provide the data within 5 working days of written request.
- The parties have an option to agree whether any part of a document is subject to a claim of privilege or that it is irrelevant but confidential then is shall be allocated a document ID, given a description and be redacted or replaced by a placeholder page as appropriate.
- The parties confirm to ask the court to give a direction applying in place of CPR 31.20 regarding inadvertent disclosure and that, on receipt of such, the receiving party will cease reviewing the material, promptly return or destroy it, and make no use of that material or its contents unless (i) the Court decides disclosure was inadvertent or the document should be disclosed or (ii) the withhold production is withdrawn. Any inadvertent disclosure shall not amount to a waiver of privilege.