Searching for documents does not create them

There is a good article on Practical Law’s construction blog by James Clarke, a solicitor at Pinsent Masons. Called Is the ESI questionnaire the future of case management?, it is generally supportive of what is now called the Electronic Documents Questionnaire, and gives a good explanation of the reasons why those of us who drafted it felt that it was necessary.

There are a couple of points towards the end, however, which have not, I suspect, come out quite as the author intended. I cannot let them pass without comment because they might otherwise serve to feed some misconceptions which bedevil any explanation of the subject. My purpose is clarification not contradiction.

The first such sentence reads as follows:

Before committing to the questionnaire at an early stage, your client needs to realise that it could commit them to search terms and sources of electronic documents resulting in a disproportionately large number of documents to review – at significant cost.

We know from the rest of the article that its author well appreciates the value of early identification of electronic sources. This sentence, however, appears to imply (indeed, says in terms) that completing the questionnaire could lead to many documents being found. Well, if the documents exist, then we need to know about them, don’t we? The alternative is relief that the documents lay undisturbed, which seems to me to fly somewhat in the face of the primary disclosure obligations. Furthermore, the fact that you have found them does not mean that you have to disclose them, still less review them – see Master Whitaker’s judgment in Goodale v Ministry of Justice, referred to approvingly by the article’s author. If you end up reviewing everything you find, then you have almost certainly been in breach of the disclosure rules, to say nothing of the overriding objective.

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Source: e-Disclosure Information Project
By: Chris Dale