Discovery Resources

By Scott Paterson

Digicel Limited v. Cable & Wireless Plc, 2008 EWHC 2522 (Ch)
Digicel Limited v. Cable & Wireless Plc, 2008 WL 4698881

Employee/Employer Implicated: Defendant’s Solicitor in charge of disclosing required documents.

eLesson Learned:
1) A disclosing party cannot claim that an additional search will produce only duplicate documents.   If a class of documents was excluded from an initial search, a party cannot claim a defense that the documents are merely duplicates of the documents already produced.  The search will be required if the initial search was unreasonable.
                   
2) A disclosing party should not conduct a keyword search unilaterally without first conferring with the opposing party.  The court will determine what a reasonable search is, and if the search is unreasonable, an additional search will be required.  Conferring with the other party beforehand to determine their intended scope will limit the possibility that an additional search will be required at an additional cost.

This case originated from a dispute during an attempt to deregulate the telecommunications industry in the Caribbean.  The claimants are mobile phone companies in the Carribean who sought to connect to interconnect their phone lines to the existing landline provider’s pursuant to the newly issued licenses.  The defendants are the incumbent landline telephone providers who relinquished their exclusive telecommunications licenses in agreements with the relevant governments.  The claimants argued that the defendants intentionally delayed in granting the interconnections so as to benefit financially and competitively.  The claimants also argued that this deliberate and unlawful delay was part of a conspiracy between all or at least some of the defendants.  The defendants argue that these claims are unsupported and baseless.

This particular action is before the court because the Claimants are seeking an order to force the defendants to give specific disclosures of certain classes of documents.  The parties were ordered to make standard disclosures in February of 2008.  The defendants stated that they carried out targeted searches for potentially relevant documents in relation to servers which contained email accounts to the extent that they were still in use in the jurisdiction.  The defendants, however, had not sought to restore any back-up tapes of the email accounts.  Defendants also carried out targeted searches of the electronic documents located in the London based servers, to which the Claimants were surprised that the defendants did not search all documents from the relevant time period.  The targeted searches were carried out by using ten keywords in the Caribbean files, and four additional words in the London searches.  The Claimants criticized the scope of the defendant’s search and brought this action to force disclosure of documents discovered by more extensive searches.  The claimants proposed that the back-up tapes be restored, and all previous servers and the newly restored back-up tapes be searched with 34 keywords in addition to the initial keywords.

The Court rule required that a party must disclose only the documents he relies on, the documents which adversely affect his own case or another party’s case, and documents required to be disclosed by a relevant Practice Direction.  The party is required only to conduct a “reasonable search” for the documents to be disclosed.  The court must take into account all of the circumstances of the case in determining whether to issue an order for specific disclosure of documents.  Such a specific disclosure order can be issued even when the disclosing party has complied with the standard disclosures so long as the requesting party can show that the disclosures were inadequate.  Although the rules require only that there be a reasonably search, they do not require that no stone be left unturned, even if a “smoking gun” is not found.  This is justified by considerations of proportionality.

With respect to the email accounts contained only on the back-up tapes, the defendants argued that there will be a substantial cost involved in restoring the tapes, and that the tapes will only reveal documents that were already disclosed.  However, the court stated that the fact that the further search will obtain substantially the same information is not enough to rule out the additional search of documents excluded from the first search.  If the court determines that the first search was inadequate or was not a reasonable search, it may issue a specific disclosure order.  The court may also not issue the order considering the substantial costs involved with another search and the likelihood of discovering worthwhile documents, however this court indicated a preference for an additional search even at a substantial cost.  The defendants did not conduct a reasonable search because they did not search the email records of the 7 individuals who were no longer employed with the company.  The defendants must restore the back-up tapes to search the email accounts of those individuals.

With respect to the defendant’s keyword search, the initial search was conducted unilaterally, with the defendant selecting the keywords for the search.  Some of these keywords shared common stems, and the initial search ended up costing more than £2 million.  Although the initial search turned up substantial volumes of documents, the search was not “reasonable” because it omitted important keywords.  The court cautions that before a keyword search is undertaken, the parties should agree as far as possible about the words used in the search so as to prevent the need for an additional search.  Because the first search omitted such important words, a research will be required with the additional keywords.  Any additional keywords added to a search need to be evaluated for their possible benefit to the search.  Words that are likely to turn up substantial volumes of irrelevant and unrelated documents are not required by a reasonable search.

Scott Paterson is a third year student at Seton Hall Law School.  After graduation, Scott will be working for a New Jersey Superior Court Criminal Judge.

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