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The old approaches to reviewing electronically stored information needed changing. Finally, after the first noteworthy judgment was given, the calls have been heard, says Kelvin McGregor-Alcorn

The English Civil Procedure Rules (CPR) were amended in 2005 to give more clarity in respect of electronic discovery (ED), yet it was some three years later before a substantive judgment was given in this area.

In Digicel v Cable & Wireless, Mr Justice Morgan highlighted the fact that the parties had not conducted a case management conference to address the subject of ED – as defined in the revised CPR 31. Clearly, most of the issues in the case should have been discussed and resolved at this stage rather than in court.

The legal team spent 6,700 hours systematically reviewing around 1,140,000 electronic documents and emails. They determined that about 5,200 were relevant at a cost of around £2m. Mr Justice Morgan determined that “the rules do not require that no stone should be left unturned. This may mean that a relevant document, even ‘a smoking gun’ is not found. This attitude is justified by considerations of proportionality”.

The management of the case was not conducted as defined in the CPR and the approach to the document review was not considered as reasonable and proportionate. This ruling clearly sets out a revised approach for any lawyer having to review electronically stored information and working within the framework of disclosure obligations.

In this context, when we ask lawyers the question ‘do you use specialist technology and service providers in your review of electronically stored information for purposes of ED?’ the majority answer in the negative. Yet virtually all of today’s professional reviews are conducted on information that is, or was, electronically stored.

It is therefore worth considering some of the reasons for the historic reluctance to utilise specialist ED tools and providers. Our experience suggests that they include:

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