The Civil Procedure Rules, Part 31, define the rules for disclosure of “documents” – but what is a document? Is it a folder, a piece of paper, a spreadsheet, or an email?
Section 31.4 of the CPR define the meaning of a document
‘document’ means anything in which information of any description is recorded; and‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.
Which means that a document is all of the above – folders, paper, spreadsheets and emails.
If A has a paper document, e.g a memo, and he wants to provide a copy of that document to B then can simply photocopy the document and provide it to the other side. The photocopy is the “same” as the document, and contains all of the relevant information needed by B.
However, as electronic documents have long since replaced paper as the major source of information disclosing a “document” is less simple than it once was.
For example, if A wants to provide a Word document to B, which is a memo, A may consider just printing out the memo and then handing it over to the other side. In this case A could think that he has provide “the document”, and on face value it will appear he has: The print out contains all of the words the user sees, it is same number of pages, it has the same grammar, and it even has the same font. In short, to a casual observer, it is the same document., and nothing is being withheld from B.
However it is not.
The Word document contains a whole host of information, normally referred to as “meta data”. This can provide information such as:
- Original Author of the document
- Company which produced the document
- Person who last saved the document
- Date the document was first created
- Date the document was last saved
- Date the document was last printed
This information could be critical to a case.
Because all of this information is part of the Word document, the whole document needs to be provided, and not just a print out. i.e the electronic document needs to be provided.
The CPR 31 Practice Direction states that:
“… [the] definition of a document… extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.”
It also goes on to say that
“The parties should, prior to the first Case Management Conference, 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. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.”