Electronic Data in the Scottish Courts
I attended a conference at the Court of Session earlier this week, which was hosted by the Commercial Judges of the Court of Session. The conference concerned the use of electronic data in disclosure and also in the presentation of evidence – particularly in the Commercial Courts.I attended a conference at the Court of Session earlier this week, which was hosted by the Commercial Judges of the Court of Session. The conference concerned the use of electronic data in disclosure and also in the presentation of evidence – particularly in the Commercial Courts.
Each of the Commercial Judges spoke or hosted panel sessions and there was useful discussion about what is working and what is not working well in the current system.
Scotland does not have a system of standard disclosure in the same way as England. As regular readers of this blog may recall, typically documents are only disclosed in Scotland if the party seeking them lodges a Specification of Documents setting out a particular document or category of document that is relevant to their written case. Wide ranging Specifications, often known as “fishing diligences” will not typically be granted. There was some discussion of the fact that English litigants seem to be struggling with the volume of disclosure because of the mine of electronic data now available; because of online records and email accounts.
It is not uncommon for searchers to have to go through several million documents to try and ascertain whether there are particular categories of document, for example email, that touch on particular themes. The English courts seem to be moving, as we understand it, towards proportionate disclosure on particular cases.
In Scotland, one of the issues that was being discussed, was how the court or a commissioner appointed by the court should direct searches of huge volume of documents. It is clear that the court may be willing to consider key word searching and predictive coding rather than every single document being looked at. However, if this cannot be agreed with the opponent, it will be a matter of application to the court or commissioner.
Another issue that was discussed was the cost of searching (given that sometimes it will require application of bespoke technology) if a third party not involved in the litigation is served with a copy of a Specification of Documents (as sometimes happens). Again, the law enables an application to the court seeking an award of reasonable costs for complying but there was some discussion about whether a protocol from the court would be helpful. Cooperation between parties is generally needed. The safest course is to search everything covered by the Specification of Document but in reality that might not be possible if there are millions of documents and given documents cannot be just delivered as a mass bundle unless one is sure of their relevance, it is often the case that defensive search terms will need to be agreed- if there is a multitude of online documents. There generally therefore needs to be cooperation and discussion about the time and amounts involved.
It seems clear that the direction of travel is to move more to the electronic use of documents and those of us involved in the commercial dispute resolution field in Scotland have to be alive to that point. That includes educating clients and imparting the bad news about costs of robust search of relevant document, potentially sometimes before litigation begins.
One practical takeaway for clients is simply to try to understand where their data is held – far better if they can point to particular central repositories or sources than simply say it is scattered across a company or group. Unfortunately it tends only to be the lawyers that win in the procedural battles that follow from such practical difficulties!
Eric Baijal is Head of Litigation at BBM Solicitors.