Every business involved in the transport sector uses some or all of the following: email, mobile phones, software systems, telemetry devices. All of these systems create electronic documents. James Lappin, Partner at DWF LLP looks at the issues that this could create.
What does ‘disclosure’ mean?
When parties engage in litigation, an early obligation is to effect ‘disclosure’ of all relevant documents, good or bad, to the opposing party. This includes:
- any document held in electronic form, such as email and other electronic communications such as text messages and voicemail
- word processed documents and databases
- documents stored on portable devices such as memory sticks, mobile phones, laptops and other hand held devices. In addition to documents that are readily available from computer systems and other electronic devices and media, it includes documents stored on servers, back-up systems, off-site storage and even documents that a user has deleted.
The information attached to electronic documents extends far beyond what a typical user can see on screen or on a print-out. It also includes the ‘metadata’ and other embedded data that sits behind the electronic document and can usually be readily accessed by forensic IT specialists. Such data can reveal not only who created the document, but also precisely when, who has viewed or amended it, who the document has been sent to, when and by what means.
Commercial Litigation Partner James Lappin at DWF commented: “As soon as litigation is contemplated, a legal representative must notify his client of the need to immediately preserve all disclosable documents and to keep them preserved for the currency of the proceedings. Documents to be preserved include electronic documents which may otherwise be deleted in accordance with the client’s existing document retention policy or in the ordinary course of the client’s business. It’s therefore important for businesses to have policies and procedures in place which give consideration to their e-disclosure obligations should any dispute or litigation arise.”
Penalties for not complying with disclosure rules
A party to litigation who wilfully or carelessly breaches such protocol is likely to be censured by a court and penalised in costs. It can also call into question the motive for a party’s actions and, in some instances, a party’s integrity, which can impact on credibility and harm a party’s chances of success at trial. It goes without saying, therefore, that where electronic documents are stored, in what form, who owns them and who has access to them, are necessary and indeed fundamental considerations for all businesses, including those operating in the transport sector.
For those businesses with a sophisticated document retention policy, it is important that they monitor their employees to ensure they are compliant with those procedures. For example, employees may be able to circumvent any such procedures by saving documents locally to their own PCs or laptops rather than on centrally controlled servers.
It is also important for a business to educate its employees about the importance of not only following IT procedures but also, more generally, the importance and potential consequences of the electronic documents they create on a daily basis. In addition to emails, spread-sheets and written documents, the use of instant messaging, social media and mobile phone based ‘apps’ is now widespread. All are forms of electronic documents and all are therefore potentially disclosable in legal proceedings.
A company which has given advanced consideration to the issues identified above will undoubtedly place itself in a stronger position in any litigation and will potentially save on legal and experts costs.