Disclosure: The ESI Questionnaire’s Debut

March 2, 2010

In Gavin Goodale v The Ministry of Justice [2010] EWHC B41 (QB) Senior Master Whitaker faced ‘a serious practical problem for the case management of disclosure which is now occurring on a regular basis’, namely litigation in which a massive volume of electronically stored information featured – with the associated dangers as to ballooning costs.  

The judgment is useful for a number of reminders that are highly relevant to the general approach to disclosure of electronically stored documents (ESI), but it is chiefly remarkable because the schedule to the judgment includes the ESI questionnaire that a number of experts have been hoping will be widely adopted either voluntarily or with the backing of individual judges, pending its likely final adoption by the Rule Committee. The judgment is now available on BAILII. A copy of the Guidance Notes and Glossary prepared by the committee which produced the questionnaire is available to download from the panel opposite.

While ordering standard disclosure, Senior Master Whitaker was at pains to point out that such an order did not remove the need for control by the court of the search process. The defendants had indicated that they did not want to carry out a search for ESI as they believed that the cost of such a search would be disproportionate but the Senior Master was not persuaded: ‘a limited amount of disclosure of ESI has to be undertaken at this stage but it has to be undertaken in a way that makes it the least expensive and most proportionate exercise possible’. He made the following observations:

‘I think the proper thing to do is to start with a fairly crude search and then, if the numbers are within reason, to work with experts to render the corpus of documents down and de-duplicate them and then move on to the review stage. The parties should consider their obligations under PD 31 2A to “… discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies.” And further discuss the defendants’ proposed search methodology, once they have absorbed my views in this judgment and the defendants must also complete the [ESI] questionnaire … as a means of providing the claimant and the court with the necessary information in a structured manner’.