Documentary and Electronic Evidence - Law Reform Commission

to the court. All these advances mark out the Commercial Court as the mostmodern court and one which has been established with technology in mind andhas integrated with technology to ensure ―electronic service, exchange andlodgement.‖ 99(7) Amendments to the Rules on Discovering Electronic Documentsin England6.121 The precise duty as to the disclosure of documents in civil litigation inEngland was addressed by the 1999 Woolf reforms in the Civil ProcedureRules. This replaced a system of blanket discovery with standardised disclosuremechanisms again based on the reasonableness of the search employed andjudged according to the case with a primary focus on the financial burden ofretrieval and the complexity of the primary litigation.6.122 Civil Procedure Rules relating to electronic discovery and electronicdocuments indicate a new scheme which followed on from the suggestionsarising in the Woolf reforms and represent a more liberal approach to disclosingand inspecting documents in advance of proceedings. 1006.123 CPR 31.6 imposes a positive duty on a party to disclose all thedocuments in his possession which would adversely affect his own case oranother party‘s case or which could support another litigant‘s case followingreasonable search. 101 The mechanism envisaged by CPR 31.6 then establisheswhat amounts to a file-sharing provision.6.124 Where an opposing litigant receives documents under theseprovisions he is effectively barred from disputing the authenticity of thedocuments unless he does so immediately upon receipt of them. Any challengeavailable to him is by means of service of a notice requiring that the other partytake steps to prove the document at trial. 10299100101102O, 63 A, r 31.CPR 31.16.CPR 31.8.CPR 32.19.233