of management is essential to avoid duplication of effort and confusion at every level. Once the person in overall charge of disclosure has identified data that is likely to be stored in foreign jurisdictions the first action to take should be to investigate whether in fact that data is also stored locally. The nature of modern IT systems means that there are high levels of duplication and data which at first instance looks as though it is going to be complicated to obtain may well in fact be relatively simple to collect and process. If it is in fact the case that the data is only located in a foreign jurisdiction then the first step should be to broadly investigate the likely difficulties that are involved in locating the data, a good first step to doing this would be to refer to the DLA guide mentioned earlier on in this article but it must always be only a broad guide and it will always be prudent to obtain local advice from the jurisdiction involved about the best way to obtain that data. If, once that advice is obtained, it is apparent that the costs involved in obtaining the documentation is going to disproportionate or unreasonable in the circumstances of the case then it may be possible to exclude that documentation from your disclosure exercise by relying on CPR 31.7 (2) that states; 31.7 (1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c). (2) The factors relevant in deciding the reasonableness of a search include the following –
The reasons for excluding documents from the disclosure exercise must be outlined in the disclosure statement and so unsubstantiated assertions that the costs are likely to be too high or the documents are not likely to be significant are more likely to be challenged by your opponents and less likely to carry the weight that a well researched and evidenced statement would do. If parties are unable to legitimately exclude the collection of documents located abroad in this manner then it will be necessary to complete the disclosure exercise in the usual manner. This will would best be achieved by showing understanding of the difficulties that the parties in the foreign jurisdiction may experience in completing the exercise and so to that end if time allows use the Hague Convention. This would have the effect of giving the party giving disclosure domestic court orders with which they would have to comply. As outlined above UK courts may well see this as an unnecessary step as jurisdiction is already established but if done properly it does make the exercise significantly simpler if more time consuming. In the absence of available time then parties would be well advised to seek to agree a very tight criteria under which the search should take place, it should be explained to opponents that these tight criteria are not there to unnecessarily restrict disclosure but are in fact there to enable any disclosure at all to take place. The criteria can be restricted by; • •
(a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document; and (d) the significance of any document which is likely to be located during the search.
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Suggesting very tight filters (custodian, keyword and date) Trying to obtain consent from the individuals involved in the disclosure exercise (if possible) Suggest conducting a redaction review in country to remove the risk of the inadvertent transfer of personal data.
Of course all of this must be done using local resources in order to further limit
18 the barrister Michealmas term 2015
the risk of the transfer of personal data. The procedures and difficulties outlined in the article will change at some point in the future with the eventual implementation of the new EU Data Privacy Regulation. However the changes are unlikely to significantly reduce the level of complication as companies involved in litigation will be subject to very large fines for breaches of data privacy (2% of global turnover or a maximum of 1 million Euros are the likely levels of fine) and so if anything reluctance to comply with disclosure is likely to increase.
Mike Taylor Director I-Lit Parlegals 07766240766 01748810221
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