A guide to e-disclosure and avoiding pitfalls

From the moment your organisation becomes aware that it might become involved in a dispute, you have a duty to retain relevant documents and ensure they are not deleted either intentionally or because of data retention policies. As first published by external agency, IT Group.

E-disclosure refers to the search for disclosure of all relevant electronic documents. With the majority of documents starting life electronically, the early discovery of this information is vital if parties wish to develop a thorough case. Here we guide you through the search and disclosure process, including potential challenges to consider and the pitfalls to avoid:

Searching for documents
An early assessment of what systems you have and what material they hold is critical. This can be a complicated task given the growing volume and diversity of data created by organisations.

As well as paper documents, materials on mobile phones, file systems, archives and computer systems on the premises, it is likely that you will have to review and search where data is held by third parties, such as computer support organisations, storage archivists and increasingly, cloud storage data centres.

Even if you do not envisage your business ever becoming involved in litigation, it is advisable to prepare and maintain an up-to-date register of your key systems.

Considerations when searching
Many organisations will find that their email is no longer held on their own email server as it has been outsourced to the cloud via services such as Microsoft365 or Google apps for business. Depending on your email retention policies, older emails might be stored in offsite enterprise vaults. These email archives keep original versions of every email sent or received and therefore may display a different view from the one seen in a particular user’s mailbox. Also bear in mind that if you operate a “bring your own” device policy, emails, photographs, text messages and other materials potentially containing work data may be held on your staff’s personal devices.

If your business uses ‘procurement portals’ or ‘supplier sharepoints’, each of these must be considered as part of the scope for an “all material” search. Often the searching within these portals is poor and bulk download facilities can be limited.

Once all of the systems have been identified, speak to an e-Disclosure consultant. They will be able to advise you how each of the systems is best searched in line with the specification. It is likely that they will have ‘plug-ins’ to many of the most common systems, which could dramatically reduce your search costs.

Common pitfalls
Depending on the complexity of the search criteria, the speed of your systems and if there is a requirement to search for deleted material, there are different ways to tackle the search process. It may be done on your systems whilst in situ, or alternatively a ‘mirror’ or ‘forensic image’ of your systems will be conducted using powerful specialist tools which are set up offsite.
“During the search, businesses must consider the impact on document ‘metadata’ which describes elements of information such as ‘last modified’, ‘date created’ and ‘last accessed’.

It is possible that this data could be altered by conducting the wrong search type or by collecting documents together on a portable drive. Imagine trying to explain that you have had a documented equality policy since 2001 when the “date created” on the document you disclose suggests that it was created last week because the metadata has been updated.

Also consider that some documents don’t appear responsive to search terms. These could be photo files or paper documents which may have been scanned to make them electronic but have not been “optical character recognised” (OCR’d) so they may be readable to the human eye but are not searchable.

There are processes which can be put in place to identify likely documents which typically should have text within them, but appear to be ‘empty’, such as .TIFF and PDF files.

Disclosing your documents
Once the documents have been identified, they need to be made available for review. This may be internal or require your legal advisors to help identify legally privileged or not relevant (but confidential) data. This data can be easily identified using search terms and excluded from any searching prior to the review process. In past reviews, lawyers from different countries have needed to look at the document repository on a centralised review platform, which can be easily done.

Special handling must be considered when using emails, specifically attachments. We often find that critical documents are forwarded as attachments on email. Although these documents may be for disclosure, comments in covering emails may be privileged which means they should not be disclosed, so must be kept separate.

If you are disclosing information because of a commercial dispute, then it is likely that you will be expecting to receive a bundle of documents in return from your counterparty. This production and exchange process can cause many complications.

In our experience, early communications with the counterparty will iron out any issues which may arise

Cyber security should be front of mind as it is paramount that you protect your sensitive information throughout the entire process. Make sure that you carefully select your e-Disclosure advisor, ensuring that they have at least ISO 27001 (Information Security Management) and that access to your data on the review platform is protected by authentication methods and not just username and passwords.

E-disclosure investigations can be complex, so putting the most efficient and appropriate procedures in place is essential to get the right results and potentially reduce costs. Seeking specialist advice and technology providers can take the strain out of the process and avoid some of the potential pitfalls

For further information on the new measures or guidance on putting prevention procedures in, please contact IT Group on 0845 226 0331 or enquiries@itgroup-uk.com

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