Case Law: Disclosure – Abela v Hammond Suddards

In the case of Abela v Hammond Suddards 2008  the detail of the CPR 31 was looked at, and in particular the reasonableness, or otherwise of a search, which comes under 31.7 of the CPR.

The respondent (Hammond) argued that the recovery of 21 months of backup tapes was too greater a task, and could cost £150,000.

These figures appear to be quite ridiculous.

If there was on tape a day, 5 days a week, 20 days a month, there would be 420 tapes over 21 months, and if ALL of the tapes were to be processed, and an expensive company was to be used then the cost of  around £200,000 could be achieved.

By why use one every day? Why not  one tape a week, or one a month? Selecting one  week or one a month would radically reduce the costs, and still be reasonable. Certainly more reasonable than not doing any.

The judgment of the court was that:

It is “not that no stone must be left unturned” but that a “reasonable search” is conducted. But it is the court that decides what is reasonable, “not the disclosing  solicitor“.

The judge did not believe the issue with tapes either stating that: “I am unimpressed by problems with acquiring tape drives, licenses, and hard disk space to process the data

The judge also referred to the DigiCel Case, for a measure of reasonable searches using keywords.

Is time of turning a blind eye to the incredible important source of back tapes over?

In the current market tape extraction has been more accesible: Tools like Index Engines, which can speed through backup tapes, searching and indexing the data on hundreds of tapes at a time , hard drive space is incredibly cheap (1 TB available for £50) and more and more companies offering tape extraction, eMag, Altrium, Ontrack, Palmer Legal Technologies, Sanderson Forensics, therefore there is no real excuse not to process some backup tapes, or seriously consider at least examining a good sample of them.


3 Responses to “Case Law: Disclosure – Abela v Hammond Suddards”

  1. Bad Advice: Solicitors or Consultants? « Data - Where is it? Says:

    […] Abela v Hammonds case – in which back up data was not processed, the search was not reasonable […]

  2. EDiscovery: Top Tape Myths « Data – Where is it? Says:

    […] If a law firm has a box of 200 tapes with no labels, no accurate labels, or no useful labels, e.g. “Week1  MDB1”, then they could put those tapes in the “too expensive, too time consuming, and too problematic” box and never deal with them again. Which appears to have happened in the Hammond case. […]

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