The Increasing Demands of Disclosure

by Jeremiah on June 15, 2013

There seem to have been a succession of scandals in the news over recent times, for instance the phone hacking scandal that resulted in the closure of a once great newspaper, that have served to highlight the importance of email, particularly when it comes to legal evidence. Deliberately deleting email that might be required in a court of law is a very dangerous action that can lead to the prosecution and subsequent incarceration of people who have been discovered to have done so.

It is not only deliberate deletion of potential evidence that is dangerous; accidental or thoughtless deletion can be equally disastrous, and the fact that a person did not intend to destroy evidence is no defence in a court of law.

Neither is it good enough to just have the evidence buried somewhere in the email system. When a court requires email evidence then it wants it within a reasonable time scale, and failure to deliver it within that period can result in serious penalties. Thus it is not surprising that email retention policies are now featuring very strongly in the board rooms.

Civil Procedure Rule (CPR) 31.5 came into force in April 2013. This rule changes disclosure requirements in the UK and addresses proportional discovery; eDiscovery has suddenly become significantly more onerous.

Prior to CPR 31.5 courts could either dispense entirely with disclosure or they could opt for standard disclosure. However, the new rule gives courts various options when it comes to multi-track claims. Essentially it means that courts can tailor a disclosure plan that is specific to a given case. For instance, a court could give direction that refers to specific document searches, how the disclosure should be phased, and the format in which the disclosed documents must be presented.

Disclosure must be delivered early and efficiently. The rule is that every party involved must deliver reports two weeks in advance of the initial case management conference. The reports should describe any documents which exist and that are relevant to the case. Additionally they must indicate where the documents are located along with the costs of disclosure. The parties must then get together a week before the CMC and agree a satisfactory disclosure plan. The rule is equally applicable to physical and electronic documents including archive email.

This puts a whole new raft of constraints on email and data archiving systems, and many organizations are turning to specialist cloud technology providers such as Mimecast to ensure that their email management system is compliant with current legal requirements. Given the increasing complexity of regulatory demands, for many organizations there is no alternative.

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