PRACTICE DIRECTION – SL1.2
DIRECTIONS MADE BY THE JUDGE IN CHARGE OF
THE COMMERCIAL LIST PURSUANT TO ORDER 72, R 2(3)
OF THE RULES OF THE HIGH COURT
PILOT SCHEME FOR
DISCOVERY AND PROVISION OF
ELECTRONICALLY STORED DOCUMENTS
IN CASES IN THE COMMERCIAL LIST
A Scope of Application of this Practice Direction
1. This Practice Direction:
(1) applies to all actions commenced in, or transferred into, the Commercial List on or after 1 September 2014 where:
(a) the claim or counterclaim exceeds HK$8 million and there are at least 10,000 Documents to be searched for the purposes of discovery; or
(b) the parties agree to be governed by this Practice Direction; or
(c) the Court directs the parties to follow this Practice Direction.
(2) may, on application by a party or on the Court’s own motion, be applied to actions which are not in the Commercial List.
(3) does not apply when the Court directs (either by consent of the parties or on application by one party).
2. The purpose of this Practice Direction is to provide a framework for reasonable, proportionate and economical discovery and supply of Electronic Documents under Order 24 of the Rules of the High Court (RHC). It is also to encourage and assist the parties to reach agreement in relation to the discovery of such documents in a proportionate and cost-effective manner.
B Definitions
3. In this Practice Direction:
(1) ‘Concept Searching’ is a technological tool or method that uses sophisticated statistical and linguistic models to understand the meaning behind search terms by identifying word patterns and occurrences in Electronic Documents which are then translated into concepts to be used to search information stored electronically which matches the translated concepts;
(2) ‘Data Sampling’ means the process of checking data by identifying and checking representative individual Electronic Documents;
(3) ‘Document’ means anything upon which data, information or evidence is recorded in a manner intelligible to the senses or capable of being made intelligible by the use of equipment, and includes ‘Electronic Document’;
(4) ‘Electronic Document’ means any data or information held in electronic form, including e-mails and other electronic communications such as text messages and voicemail, word-processed documents and files, images, sound recordings, videos, web-pages, and databases, that are stored on any device, including data or information stored on portable devices such as memory sticks and mobile phones. In addition to data or information readily accessible from computer systems and other electronic devices and media, it includes data or information stored on servers and back-up systems and data or information held in electronic form that has been deleted, but not yet overwritten. It also includes Metadata and other embedded data which is not typically visible on screen or a print out;
(5) ‘Electronic Documents Discovery Questionnaire’ or ‘EDDQ’ means the questionnaire in Schedule II to this Practice Direction;
(6) ‘Keyword Search’ means a software-aided search for words across the text of an Electronic Document;
(7) ‘Metadata’ is data about data. In the case of an Electronic Document, Metadata is typically embedded information about the document, in addition to the user generated content, some of which is not readily accessible once the Native Electronic Document has been converted into an electronic image or a paper document. It may include, for example, the date and time of creation or modification of a word-processing file, or the author and the date and time of sending an e-mail. Metadata may be created automatically by an operating system, or manually by a user;
(8) ‘Native Electronic Document’ or ‘Native Format’ means an Electronic Document stored in the original form in which it was created by a computer software program; and
(9) ‘Optical Character Recognition (OCR)’ means the computer-facilitated recognition of printed or written text characters in an electronic image in which the contents cannot otherwise be searched electronically.
C General principles, scope of discovery and privilege
4. When considering discovery of Electronic Documents, the parties and their legal representatives should bear in mind the underlying objectives under Order 1A, rule 1 of the RHC, including the following general principles:
(1) the cost of discovering Electronic Documents must be proportionate to the amounts claimed in the proceedings;
(2) Electronic Documents should be managed efficiently in order to minimise the cost to be incurred;
(3) technology should be used in order to ensure that document management activities are undertaken efficiently and effectively;
(4) discovery should be given in a manner which gives effect to the underlying objectives under Order 1A;
(5) Electronic Documents should generally be supplied in a form which allows the party receiving the Electronic Documents the same ability to access, search, review and display the Electronic Documents as the party giving discovery[1];and
(6) discovery of Electronic Documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom discovery is given.
5. Pursuant to Order 24, rule 15A of the RHC:
(1) the scope of discovery of Electronic Documents in cases governed by this Practice Direction shall be limited to Electronic Documents directly relevant to an issue arising in the proceedings, being Electronic Documents which are likely to be relied on by any party to the proceedings or Electronic Documents which support or adversely affect any party’s case;
(2) “background” Electronic Documents or Electronic Documents which might lead to a “train of enquiry” with the potential result of directly or indirectly supporting one party’s case or undermining another party’s case need not be discovered;
(3) in the absence of exceptional circumstances necessitating such discovery at an early stage of the proceedings, any party seeking specific discovery of “background” Electronic Documents or Electronic Documents which might lead to a “train of enquiry” may make an application for such documents only after discovery, supply of electronic copies and service of factual and expert evidence has been completed. Such an application must be supported by affidavit evidence setting out the reason(s) why such discovery is necessary for the resolution of the real issues in dispute and the likely cost of such discovery; and
(4) in lieu of Form No. 26 in Appendix A of the RHC (as required by Order 24, rule 5 of the RHC), the parties must file a signed completed EDDQ and any revised and/or updated EDDQ (in accordance with Section F below) and produce lists of Electronic Documents and supply electronic copies as required under Sections J and K below[2].
6. To cater for the inadvertent supply of privileged materials contained in Electronic Documents, parties to proceedings governed by this Practice Direction should endeavour to agree that a party that makes discovery of Electronic Documents does so without prejudice to the entitlement to subsequently claim privilege over any information contained in any Electronic Document that has inadvertently been discovered[3].
D Preservation of documents
7. As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve discoverable Documents. The Documents to be preserved include Electronic Documents[4] which might otherwise be deleted in accordance with a document retention policy or otherwise be deleted in the ordinary course of business. Native Electronic Documents must be preserved even if the same Electronic Documents are disclosed in another format.
E Discussions between the parties before the 1st Case Management Conference in relation to the use of technology in the discovery of Electronic Documents
8. The parties and their legal representatives must, before the 1st Case Management Conference (“CMC”), discuss the use of technology in the management of Electronic Documents and the conduct of proceedings, in particular for the purposes of:
(1) creating lists of Electronic Documents to be disclosed;
(2) giving discovery by providing Documents and information regarding Documents in electronic format;
(3) identifying privileged or other non-disclosable Documents; and
(4) presenting Documents and other materials to Court at the trial.
9. The parties and their legal representatives must also, before the 1st CMC, discuss the discovery of Electronic Documents and identify matters on which they agree and do not agree. In some cases (for example, heavy and complex cases) it may be appropriate to begin discussions as soon as proceedings are commenced.[5] The discussions should include (where appropriate) the following matters:
(1) the categories of Electronic Documents within the parties’ control, the computer systems, electronic devices and media on which any relevant Electronic Documents may be held, storage systems and document retention policies;
(2) the scope of the reasonable search for Electronic Documents required by Order 24, rule 15A of the RHC (see paragraph 5 above);
(3) the tools and techniques (if any) which should be considered to reduce the burden and cost of discovery of Electronic Documents, including –
(a) limiting discovery of Electronic Documents or certain categories of Electronic Documents to particular date ranges, custodians of Electronic Documents, or types of Electronic Documents;
(b) the use of agreed Keyword Searches, Concept Searching, Data Sampling and other advanced technologies, such as technology assisted review;[6]
(c) the use of software tools;
(d) the methods to be used to identify duplicate Electronic Documents;
(e) the methods to be used to identify privileged Electronic Documents and other non-discoverable Electronic Documents, to redact Electronic Documents (where redaction is appropriate, see paragraph 30 below), and for dealing with privileged or other documents which have been inadvertently disclosed (see paragraph 6 above); and
(f) the use of a ‘staged approach’ to the discovery of Electronic Documents (see paragraph 20 below) and/or disclosure in tranches;
(4) the preservation of Electronic Documents, with a view to preventing loss of such documents before trial;
(5) agreement on the exchange of data relating to Electronic Documents in an electronic format using agreed fields;
(6) the formats in which Electronic Documents are to be provided and the methods to be used;
(7) the basis of charging for or sharing the cost of the provision of Electronic Documents, and whether any arrangements for charging for or sharing of costs are final or are subject to re-allocation in accordance with any order for costs subsequently made; and
(8) whether paper Documents should be digitized for discovery and the format in which these Electronic Documents should be exchanged, for example, as text searchable ’PDF format (processed by OCR technologies) or in some other format.
10. Where it may be appropriate to begin discussions in relation to the discovery of Electronic Documents as soon as proceedings are commenced (or earlier), and it becomes apparent that the parties are unable to reach agreement in relation to the discovery of Electronic Documents, including any of the matters listed in paragraph 9, the parties should seek directions from the Court at the earliest practical date.
11. If, at any stage, the Court considers that the parties’ agreement in relation to the discovery of Electronic Documents is inappropriate or insufficient, the Court may give directions in relation to discovery on its own motion or on application by any party. The Court may order that the parties complete and exchange a revised and updated EDDQ, including answers to any additional questions that arise, within 14 days or such other period as the Court may direct.
12. If a party gives discovery of Electronic Documents without first discussing with other parties how to plan and manage such discovery, the Court may require that party to carry out further searches for Electronic Documents or to repeat any steps which that party has already carried out. In such cases, the Court may consider making a wasted costs order.
F The Electronic Documents Discovery Questionnaire and 1st CMC
13. The plaintiff should serve the EDDQ in draft form together with the statement of claim and the defendant should serve the EDDQ in draft form together with the statement of defence (and counterclaim, if any), in order to provide information to each other in relation to the scope, extent and most suitable format(s) for discovery of Electronic Documents in the proceedings.
14. A completed and signed EDDQ, verified by a statement of truth, must be filed with the Court no later than seven days before the 1st CMC together with the Information Sheet for the 1st CMC. The person signing the statement of truth must be available to attend the hearing of the 1st CMC and any interlocutory applications relating to discovery. That person may be a party, its employee or an electronic discovery specialist or technical specialist in Electronic Documents.
15. Answers to the EDDQ will only be available for inspection by non-parties upon leave being granted by the Court.
16. The Information Sheet for the 1st CMC submitted to Court should include a summary of the matters (including those listed in paragraph 9) on which the parties agree and on which they disagree in relation to the discovery of Electronic Documents (including agreements on orders and protocols for discovery and supply of Electronic Documents).
17. The extent of the reasonable search which must be made will depend on the circumstances of the case including, in particular, the factors referred to in Order 24, rule 15A of the RHC and the underlying objectives under Order 1A of the RHC. The parties should bear in mind that the underlying objectives include dealing with the case in ways which are proportionate.
18. The factors that may be relevant in deciding the reasonableness of the extent of a search for Electronic Documents include (but are not limited to) the following:
(1) the number of Electronic Documents involved;
(2) the nature and complexity of the proceedings;
(3) the ease and expense of retrieving any particular Electronic Document. They include:
(a) the accessibility of Electronic Documents, including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents, taking into account alterations or developments in hardware or software systems used by the discovering party and/or available to the discovering party to enable access to such documents;
(b) the location of relevant Electronic Documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
(c) the likelihood of locating relevant data;
(d) the cost of recovering any Electronic Documents if they are not readily available;
(e) the cost of discovering and supplying any relevant Electronic Documents; and
(f) the likelihood that Electronic Documents will be materially altered in the course of recovery, discovery or supply;
(4) the availability of Electronic Documents or contents of the Electronic Documents from other sources; and
(5) the significance of any Electronic Document which is likely to be located during the search.
19. Depending on the circumstances, it may be reasonable to search all of the parties’ electronic storage systems, or to search only part of those systems. For example, it may be reasonable to decide not to search for Electronic Documents which came into existence before a particular date, or to limit the search to Electronic Documents in a particular place or places, or to Electronic Documents falling into particular categories.
20. In some cases, a ‘staged approach’ may be appropriate, with discovery initially being given of limited categories of documents. Those categories may subsequently be extended or limited depending on the results initially obtained.
21. The primary source of discovery of Electronic Documents is normally reasonably accessible data. A party requesting under Order 24, rules 7 or 15A specific discovery of Electronic Documents which are not reasonably accessible, must demonstrate that their relevance and materiality justify the cost and burden of retrieving and producing them.
H Keyword Searches and other automated searches
22. It may be reasonable to search for Electronic Documents by means of Keyword Searches or other automated methods of searching if a full review of each and every Electronic Document would be unreasonable.
23. However, it will often be insufficient to use simple Keyword Searches or other automated methods of searching alone. The injudicious use of Keyword Searches and other automated search techniques –
(1) may result in failure to find important Electronic Documents which ought to be discovered; and/or
(2) may find excessive quantities of irrelevant Electronic Documents, which if discovered would place an excessive burden in time and cost on the party to whom discovery is given.
24. The parties should consider supplementing Keyword Searches and other automated searches with advanced techniques, such as Concept Searching and Data Sampling and other advanced technologies, including technology assisted reviews.
25. Where copies of disclosed Electronic Documents are not provided in Native Format, only limited Metadata will be disclosed with each Electronic Document. A party requesting discovery of Metadata or forensic image copies of disclosed Electronic Documents (for example in relation to a dispute concerning authenticity) must demonstrate that the relevance and materiality of the requested Metadata and justify the cost and burden of producing that Metadata.[7]
J Lists of Electronic Documents
26. Where a party is making discovery of Electronic Documents[8],
(1) a list of Electronic Documents may by agreement between the parties be an electronic file in .csv (comma-separated values) or other agreed format;
(2) Electronic Documents may be listed otherwise than in date order where a different order would be more convenient, but attachments should immediately follow their parent document even where the date of the attachment differs from that of the parent document;
(3) save where otherwise agreed or ordered, Electronic Documents should be listed individually if a party already possesses data relating to the documents (for example, type of document and date of creation) which make this possible (so that as far as possible each Electronic Document shall be given a unique reference number);
(4) a party should be consistent in the way in which Electronic Documents are listed;
(5) consistent column headings should be repeated on each page of the list on which Electronic Documents are listed, where the software used for preparing the list enables this to be carried out automatically; and
(6) the discovery list number used in any supplemental lists of Electronic Documents should be unique and should run sequentially from the last number used in the previous list.
K Format of production of electronic copies, including redacted copies of disclosed Documents[9]
27. Save where otherwise agreed or ordered, copies of discovered Electronic Documents should be provided in their Native Format, in a manner which preserves Metadata such as the date of creation of each Electronic Document.
28. Where it is agreed or ordered that copies of discovered Electronic Documents should be provided in formats other than their Native Format, for example text searchable PDF or other ‘image formats’, they should be rendered in such a way as to include any pertinent information, such as, for example, ‘track changes’, ‘comments and mark-up’, ‘speakers notes’, ‘hidden rows’, ‘hidden columns’, ‘hidden worksheets’. Where colour is present and material to the comprehension of the Electronic Document, such as coloured graphs, this information should be rendered in colour.
29. Where the Court has directed or the parties have agreed not to provide Electronic Documents in their Native Format, a party should provide searchable OCR versions of the disclosed Electronic Documents, unless good reason is shown for not doing so.[10]
30. If a party wishes to redact or otherwise make alterations to an Electronic Document or Documents[11], then:
(1) the party redacting or altering the Electronic Document must inform the other party that redacted or altered versions are being supplied; and
(2) the party redacting or altering the Electronic Document must ensure that the original un-redacted and unaltered version is preserved, so that it remains available to be supplied if required.[12]
31. If Electronic Documents are best accessed using technology which is not readily available to the party entitled to discovery, and that party reasonably requires additional access facilities, the party making discovery shall co-operate in making available to the other party such reasonable additional facilities to access those Electronic Documents, as may be appropriate in accordance with Order 24, rule 15A of the RHC.
M Presenting Documents and Other Materials to Court at the Trial
32. Pursuant to paragraph 8(4) of this Practice Direction where Documents and other materials are required to be presented to Court at trial, parties may choose to adduce evidence in the format of Electronic Documents. They may need to bring along their own devices equipped with necessary software or specialised technology for presenting the Electronic Documents to Court.
33. Where appropriate, the parties may agree, or be required by the Court, to convert the Electronic Documents into some generic and commonly used file formats recognised by the computer or audio/visual facilities available in Court.
N Schedules
34. The following schedules are appended to this Practice Direction:
I. Guidance Notes on Discovery of Electronic Documents
II. Electronic Documents Discovery Questionnaire (‘EDDQ’)
III. Guidance Notes on the EDDQ
IV. Sample Protocol for Discovery of Electronic Documents
O Commencement and Review Dates
35. This Practice Direction shall come into effect on 1 September 2014. It will be reviewed on or before 1 September 2015.
Dated this 16th day of June2014.
| (Johnson Lam) | (Mohan Bharwaney) |
| Vice President of the Court of Appeal | Judge in Charge of the Commercial List |
| Chairman, Working Committee on | |
| eDiscovery in Civil Cases |
Schedule I - Guidance Notes on Discovery of Electronic Documents
Introduction
1. This guidance note attempts to assist parties to prepare for discovery of Electronic Documents with particular reference to the following aspects:
a. The legal basis of discovery of Electronic Documents;
b. The objectives under Order 1A of the RHC;
c. Preservation and management of Electronic Documents;
d. Scope and protocol of the discovery of Electronic Documents; and
e. The questionnaire and summons for discovery of Electronic Documents.
The legal basis of discovery of Electronic Documents
2. Discovery of Electronic Documents is to be given pursuant to Order 24, rule 15A of the RHC. See Sections A and C of the Practice Direction.
3. The parties may digitize paper documents (identified as such on the list of documents) to form a complete set of discovery Documents and a complete electronic bundle for the trial.
4. The EDDQ is designed to help the parties reach agreement on a proportionate and cost-effective manner of effecting discovery and supply of Electronic Documents with regard to the underlying objectives under Order 1A of the RHC.
The objectives under Order 1A of the RHC
5. The parties should bear in mind the Court’s approach in its case management role in the discovery exercise, which was set out in the Final Report of the Civil Justice Reform:
The court should be expected to exercise its case management powers with a view to tailoring an appropriate discovery regime for the case at hand. It should have a residual discretion both to direct what discovery is required – to narrow or widen the scope of discovery required, to include, if necessary and proportionate, full Peruvian Guano style discovery – and in what way discovery is to be given.[13]
6. Members of the legal profession should take note of Order 1A rule 3 of the RHC, which requires the parties and their legal representatives to assist the Court to further the underlying objectives of the RHC. See Section C of the Practice Direction.
Preservation and management of Electronic Documents
7. The parties’ legal representatives should advise their clients to maintain, for the purpose of discovery, a well-organized and readily searchable system and filing management of Electronic Documents at the first contemplation of litigation, and to issue instructions to the party or its employees or any other custodians to ensure that potentially relevant Electronic Documents, which might otherwise be deleted in the ordinary course of business or under a document retention policy, are preserved until the final determination of the litigation. Parties should note that the definition of Electronic Documents includes documents which have been deleted, but not yet overwritten. It is common practice to take an ‘image’ copy of the relevant hard drives or other digital media as soon as litigation is contemplated. Attention should also be given to appropriate software to search for relevant Electronic Documents and to reduce the number of Electronic Documents that need to be reviewed. See Section D of the Practice Direction.
Scope and protocol of the discovery of Electronic Documents
8. Discovery of Electronic Documents requires a well-organized and close cooperation between the parties and their legal representatives, who should hold discussions before the 1st CMC (or earlier) to exchange information on the scope and extent of the discovery exercise and the use of agreed Keyword Searches or other suitable software tools for identifying relevant Electronic Documents. See Section E of the Practice Direction.
9. The parties should cooperate with a view to reaching agreement in relation to the matters as set out in Section E of the Practice Direction, and record their agreement in a draft court order and discovery protocol for the Court’s approval at the 1st CMC.
The questionnaire and summons for discovery of Electronic Documents
10. Parties should serve a draft EDDQ when they serve their respective pleadings with a view to reaching agreement on the scope and extent of the discovery exercise and the Keyword Searches or other software tools to be utilized. If the parties encounter difficulties in reaching agreement, a summons issued under Order 24, rule 15A of the RHC, identifying the issues to be resolved by the Court, should be taken out as early as practicable and before the 1st CMC. A signed completed EDDQ verified by a statement of truth must be filed with the Court no later than seven days before the 1st CMC together with the Information Sheet for the 1st CMC. See Sections E and F of the Practice Direction.
Schedule II - Electronic Documents Discovery Questionnaire (‘EDDQ’)
Part 1 – Your discovery – use your best endeavours to answer the following questions. Where necessary a subsequent questionnaire could be filed when additional relevant information becomes available[14]
Date range and custodians
1. What date range do you consider that your searches for Electronic Documents should cover (‘the date range’)?
2. Identify the custodians or creators of your Electronic Documents whose repositories of documents you consider should be searched[15].
Communications
3. Which forms of electronic communication were in use during the date range (so far as is relevant to these proceedings)?
| A |
B |
C |
D |
E |
| Communication |
In use during the date range? (yes/no) |
Are you searching for relevant documents in this category? (yes/no) |
Where and on what type of software/equipment/media is this communication stored[16]? |
(a) Are back-ups or archives of this communication available, and (b) if so, are you searching the back-ups or archives? |
| i) E-mail[17] |
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| ii) Other (provide details for each type[18]). |
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Electronic Documents
4. Apart from attachments to e-mails, which forms of Electronic Documents were created or stored by you during the date range?
| A |
B |
C |
D |
E |
| Document Type |
In use during the date range? (yes/no) |
Are you searching for relevant documents in this category? (yes/no) |
Where and on what type of software/equipment/media are these documents[19]? |
(a) Are back-ups or archives of these documents available, and (b) if so, are you searching the back-ups or archives? |
| i) Word (or equivalent - state which) |
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| ii) Excel (or equivalent - state which) |
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| iii) Electronic Images[20] |
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| iv) Other[21] (state which) |
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Databases of Electronic Documents
5. In the following table identify database systems, including document management systems, used by you during the date range and which may contain discoverable Electronic Documents.
| A |
B |
C |
D |
E |
| Name |
Brief description |
Nature of data held |
Are you disclosing documents held in this database? (yes/no) |
Proposals for provision of relevant documents to or access by other parties to this litigation |
| 1. |
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| 2. (etc) |
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Potential problems with the extent of search and accessibility of Electronic Documents
6. Do any of the document types mentioned in your answer to questions 3, 4 or 5 give you any concern about the ability to collect, preserve or review the files. Specifically:
1. Are any files password protected?
2. Do you use encryption?
3. Are there geographical locations that may hamper the collection of data?
4. Are there any legacy application systems that contain potentially relevant data?
5. Is any potentially relevant data in the custody and control of a 3rd party?
If the answer to any of these questions is yes, please provide all relevant information on these matters.
Preservation of Electronic Documents
7. Do you have a document retention policy? If yes, please outline the policy or attach a copy of the policy to this document.
8. Have you given an instruction to preserve Electronic Documents, and if so, when and what instructions were given?
Part 2 - Discovery by other parties
The extent and content of their search
9. Do you at this stage have any proposals about the date ranges which should be searched by other parties to the proceedings? If so, provide details.
10. Do you at this stage have any proposals about the custodians or creators whose repositories of documents should be searched for discoverable documents by other parties to the proceedings? If so, provide details[22].
*[I believe][The [plaintiff][defendant] believes] that the facts stated in the answers to this Electronic Documents Discovery Questionnaire are true to the best of my knowledge, information and belief.
*I am duly authorised by the [plaintiff][defendant] to sign this statement.
Full name
Name of party, party’s legal representative or party’s technical advisor
Signed
Position or office held (if signing on behalf of firm or company)
Date
* delete as appropriate
WARNING: Unless the Court makes some other order, the answers given in this document may only be used for the purposes of the proceedings in which the document is produced unless it has been read to or by the Court or referred to at a hearing which has been held in public or the Court gives permission or the party who has completed this questionnaire agrees.
Schedule III - Guidance Notes on the EDDQ
1. Parties are encouraged to agree as much as possible in relation to the discovery protocols. The EDDQ provides a number of items for consideration during discussions held with the intention of agreeing a protocol and subsequently during any CMC. It is highly recommended that the parties include any e-discovery or technical specialist whom the parties wish to assist them with discovery, such that they may contribute to the discussions and agreements and be able to establish a protocol which is more likely to expedite the process and eliminate any unnecessary expense.
2. Technical expressions are defined in the Practice Direction.
3. The questions in the EDDQ are not intended to imply how discovery should or should not be carried out. They are intended only to provide information to other parties and to the Court.
4. Further facts and matters may come to the parties’ attention over the course of the proceedings which affect the answers to the EDDQ. Where detailed information is not yet available at the time the EDDQ is first answered, parties should give such information as they can, and supplement or amend their answers when further information is available. Answers should be updated by notifying other parties and the Court without undue delay, and in any event before each CMC at which discovery is likely to be considered.
5. Some of the questions in the EDDQ require only a brief answer which may need to be elaborated after EDDQs have been exchanged. The purpose of such questions is to assist the parties in identifying the points which may require elaboration in order for meaningful discussions to take place between them.
6. Questions which refer to sources of Electronic Documents that are not considered to be relevant may be answered with a statement to that effect.
7. Questions about ‘your’ documents and about software, hardware or systems used by ‘you’ are directed, in the case of solicitors, to the solicitor’s lay client’s documents or to documents prepared on the lay client’s behalf.
Schedule IV - Sample Protocol for Discovery of Electronic Documents
[as agreed or pursuant to an order dated [ ]]
I. Format of list
Unless otherwise agreed or ordered:
1. The list of documents shall categorise and list electronically stored documents separately from documents in printed or other form.
2. The list of documents enumerating electronically stored documents shall include the following columns:
(a) Discovery List number;
(b) Document identifier;
(c) Date;
(d) Document type (email, agreement, etc.);
(e) Title (e.g. subject line of an email or document title);
(f) Author(s)(The parties may upon agreement separate the recipients into separate columns for ‘To’, ‘CC’, ‘BCC’ and ‘Attendees’ (to a meeting), they may also choose to agree to add parties to an agreement as a separate ‘Between’ option);
(g) Recipient(s); and
(h) Parent/Attachment. This applies where a document contains other documents which are attached. This field will state the Document identifier of the other documents attached.
3. An index of documents enumerated in the list of documents shall be provided in an electronic spreadsheet or such other format as agreed.
II. Review for privileged material
If the party giving discovery claims privilege over any document or record, he shall list the electronic document(s) or class of electronic documents over which privilege is claimed in the list of documents, either as a separate list or by adding a column that clearly identifies those documents subject to such a claim, and whether that claim is whole or partial, resulting in the redaction of the document.
III. Supply of copies
1. Supply of soft copies of discoverable electronic documents shall be made in lieu of inspection in their Native Format or in such other format as agreed or ordered.
2. Paragraph 1, Part III shall not prevent the party receiving discovery from making a request for supply or inspection of the original electronic document at a later stage should inspection become necessary.
3. Electronic copies of discoverable documents will be supplied on read-only optical discs, or on an external portable device, such as a USB thumb drive or portable USB HDD upon request. Electronic copies of discoverable documents where privilege is claimed only with respect to their internally stored metadata information will be supplied in the Tagged Image File Format (or TIFF) with privileged metadata information removed.
IV. Inadvertent disclosure of privileged material
Where a party inadvertently allows a privileged document to be supplied, the party who received it may use it or its contents only if the leave of the Court to do so is first obtained. See paragraph 6 of the Practice Direction.
V. Discovery is a continuing obligation
This protocol will continue to apply to any additional electronic documents that are discovered after the initial list of documents has been provided. Such further list of documents, and copies of such additional electronic documents, shall be supplied to the other party as soon as is reasonably possible after such additional documents are discovered in the same format as provided in this protocol.
Signed by:
______________________ ______________________
The plaintiff The defendant
[or solicitors/representative] [or solicitors/representative]
Dated
[1] Applications for photocopies or hard copies of Electronic Documents pursuant to Order 24, rules 9, 11 and 11A of the RHC will not be acceded to by the Court unless good reason is shown.
[2] Details of paper documents which are to be digitized for discovery should be included in the EDDQ. See paragraph 9(8) below and paragraph 3 of Schedule I – Guidance Notes on Discovery of Electronic Documents.
[3] Parties are encouraged to enter into an agreement setting out detailed protocols to deal with the inadvertent disclosure of Electronic Documents (commonly known as a “Clawback Agreement”), and to provide details of any such agreement to the Court as part of the Information Sheet for the 1st CMC.
[4] Note that the definition of Electronic Documents includes documents which are deleted, but not yet overwritten. It is common practice to take an ‘image’ copy of the relevant hard drives and any other digital media as soon as litigation is contemplated.
[5] Where parties are engaged in pre-action communications in connection with contemplated proceedings, it may also be appropriate to begin discussions on the discovery of Electronic Documents prior to the commencement of proceedings.
[6] Consideration should be given to whether there are Electronic Documents that may be relevant and/or discoverable, but which may not be readily text searchable, such as, ‘document images’ from scanners or electronic fax, photographs, videos and audio recordings.
[7] Parties using document management or litigation support systems should be alert to the possibility that Metadata or other useful information relating to documents may not be stored within the documents.
[8] Further guidance is provided in the Schedule IV - Sample Protocol for Discovery of Electronic Documents.
[9] Parties are reminded of paragraph 9(6) of this Practice Direction and that they should co-operate at any early stage about the format(s) in which Electronic Documents are to be supplied.
[10] Except in the case of redacted information, parties should not unnecessarily alter the OCR text which they maintain within their system at the time of production/discovery.
[11] Note that this paragraph does not apply where the only alteration made to the document is an alteration to the Metadata as a result of the ordinary process of copying and/or accessing the document. This footnote does apply to the alteration or suppression of Metadata in other situations.
[12] A party should ensure that the OCR of a redacted section of a document is not provided, but that the OCR of the remainder of the document is provided.
[13] Proposal 29 at §500 on page 259.
[14] See also paragraph 4 of the Guidance Notes on the EDDQ (Schedule III).
[15] Include names of all those who may have or have had custody of discoverable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians.
[16] State the geographical location (if known). Consider (at least) servers, desktop PCs, laptops, notebooks, handheld devices, PDA devices, off-site storage, removable storage media (for example, CD-ROMs, DVDs, USB drives, memory sticks) and databases.
[17] Consider all types of e-mail system (for example, Outlook, Lotus Notes, web-based accounts), whether stored on personal computers, portable devices or in web-based accounts (for example, Yahoo, Hotmail, Gmail).
[18] For example, instant messaging, voicemail, VOIP (Voice Over Internet Protocol), recorded telephone lines, text messaging, audio files, video files.
[19] State the geographical location (if known). Consider (at least) servers, desktops and laptops.
[20] For example, .pdf. .tif, .jpg.
[21] For example, Powerpoint or equivalent, specialist documents (such as CAD Drawings).
[22] Include names of all those who may have or have had custody of discoverable documents, including secretaries, personal assistants, former employees and/or former participants. It may be helpful to identify different dates for particular custodians.