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Obligation to search when your case reaches court

The obligations require each party to conduct a search that is reasonable for documents that are, or have been, in its control and of note, that could support or be detrimental to any party's case. A party can therefore not apply a selective eye over the evidence and chose which documents to disclose to improve their chances of success.

Documents are also broadly described and can include all forms of electronic data from emails to text messages stored on a variety of sources e.g. laptops, mobiles, memory sticks and cameras. Further there is also a duty to preserve such evidence that may fall into a category of being potentially disclosable if a matter went to Court. If disclosable documents are destroyed, it is open to the Court to impose cost penalties or indeed a Judge may even draw adverse inferences from the destruction which could be as serious as leading to the striking out of a case. It is of course possible to retrieve deleted electronic data albeit at a price and a Judge may feel that that cost is worthwhile if it means that a fairer trial and assessment of the parties claims would result from such action.

Proportionality is a consideration when considering what is deemed a "reasonable" search and indeed whether the cost of retrieval is worthwhile. The latter fact was however dismissed in the case of Digicel (St Lucia) Limited and Others v Cable & Wireless plc and others [2008] EWHC 2522 Ch. In this case, the defendants spent over £2million reviewing over 1,140,000 documents that had been located by using certain search word criteria. In doing so, they had failed to co-operate with the Claimants to discuss what search words were relevant to the action and how the search could be properly undertaken. By failing to agree search parameters, the defendants were ordered by the Court to search again using further search criteria despite the huge costs already incurred. Whilst the majority of cases will not have any near this level of documentation, the case emphasizes the importance the Courts place upon the search for disclosable evidence to be fair to both sides. Relevant considerations include:-

- The number of documents involved

- How easily the information can be retrieved and at what cost;

- The nature of complexity of proceedings;

- The significance of any particular document to the claim

When undertaking this key part of the litigation process, it is therefore vital to retain a note of the search process to show that all aspects of the obligations have been followed.

For further information please contact our Civil Litigation team on 01604 828282 or 01908 660966 or complete our online contact form.

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