Is the ESI questionnaire the future of case management?

I recently attended a seminar, co-hosted by Kroll Ontrack, Dorsey & Whitney and Pinsent Masons on the use of an electronic disclosure questionnaire in court proceedings. The questionnaire’s proposed introduction illustrates some significant changes in case management that I think will have a real impact on how we litigate.

What is the ESI questionnaire?

The questionnaire is often referred to as the ESI questionnaire (where ESI stands for electronically stored information). Part 1 of the questionnaire gathers together details of:

• The type, location and custodians of electronic information that a party has control of.
• What searches (such as date ranges, keywords and other search tools) a party intends to deploy to discharge its disclosure obligations under Part 31 of the CPR.
Part 2 allows a party to give an indication as to the scope of searches that it expects from the other party in the litigation.

The questionnaire’s purpose is to assist the case management of disputes where the vast majority of a party’s documents (that it is required to disclose) are in electronic form. Given the overwhelming volume of documents now created, stored and duplicated electronically, this is a problem area for the case management of disputes. It is also a frequent source of additional cost and interim applications over a party’s compliance with its disclosure obligations.

The Civil Procedure Rule Committee is currently considering introducing the questionnaire. It was recommended by Senior Master Whitaker in Gavin Goodale and others v Ministry of Justice, where he commented on the increasing challenges to case management presented by the volume of electronic information now in the hands of parties to litigation. The questionnaire is appended to Senior Master Whitaker’s judgment and is recommended reading for any party about to embark on litigation involving electronic disclosure.

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Source: construction.practicallaw.com
By: James Clarke