Strand. London. WC2A 2LL
B e f o r e :
| 1) DIGICEL (ST. LUCIA) LIMITED (A company registered under the laws of St Lucia)
2) DIGICEL (SVG) LIMITED (A company registered under the laws of St Vincent & the Grenadines)
3) DIGICEL GRENADA LIMITED (A company registered under the laws of Grenada)
4) DIGICEL (BARBADOS) LIMITED (A company registered under the law of Barbados)
5) DIGICEL CAYMAN LIMITED (A company registered under the law of the Cayman Islands)
6) DIGICEL (TRINIDAD & TOBAGO) LIMITED (A company registered under the laws of Trinidad & Tobago)
7) DIGICEL (TURKS & CAICOS) (A company registered under the laws of Turks & Caicos)
8) DIGICEL LIMITED (A company registered under the laws of Bermuda)
|- and -
|1) CABLE & WIRELESS PLC
2) CABLE & WIRELESS (WEST INDIES) LIMITED
3) CABLE & WIRELESS GRENADA LIMITED (A company registered under the laws of Grenada)
4) CABLE & WIRELESS (BARBADOS) LIMITED (A company registered under the law of Barbados)
5) CABLE & WIRELESS (CAYMAN ISLANDS) LIMITED (A company registered under the law of the Cayman Islands)
6) TELECOMMUNICATIONS SERVICE OF TRINIDAD & TOBAGO LIMITED (A company registered under the laws of Trinidad & Tobago)
Edmund Nourse & Conall Patton (instructed by Slaughter & May) for the Defendants
Hearing dates: 16th, 17th and 18th September 2008
Crown Copyright ©
Mr Justice Morgan:
|THE HISTORY OF THE DISCLOSURE GIVEN||17|
|THE RELEVANT RULES AND THE PRACTICE DIRECTION||28|
|THE CRESSWELL REPORT||37|
|ORDER IN RELATION TO BACK-UP TAPES||70|
|KEY WORD SEARCHES||72|
|ORDER IN RELATION TO KEY WORD SEARCHES||92|
|DISCLOSURE IN RELATION TO QUANTUM||107|
- ) St Lucia,
- ) St Vincent and the Grenadines ("SVG"),
- ) Grenada,
- ) Barbados,
- ) The Cayman Islands,
- ) Trinidad and Tobago ("T & T"), and
- ) The Turks and Caicos Islands ("TCI").
"A telecommunications provider who operates a public telecommunications network shall not refuse, obstruct, or in anyway impede another telecommunications provider from making an interconnection with his or her telecommunications network".
The phrase "telecommunications provider" is defined in Section 4 of the same Act as referring to a person who is licensed under the Act to operate a telecommunications network or to provide telecommunication services. The legislation varies somewhat in the different jurisdictions although it is almost identical in St Lucia, SVG, Grenada and the Cayman Islands.
THE HISTORY OF THE DISCLOSURE GIVEN
THE RELEVANT RULES AND PRACTICE DIRECTION
Rule 31.7 - DUTY OF SEARCH
(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 -
(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;
(d) the significance of any document which is likely to be located during the search.
(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
By Rule 31.7(3), where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
2A.1 Rule 31.4 contains a broad definition of a document. This extends to electronic documents, including e-mail and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been 'deleted'. It also extends to additional information stored and associated with electronic documents known as metadata.
2A.2 The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.
2A. 3 The parties should co-operate at an early stage as to the format in which electronic copy documents are to be provided on inspection. In the case of difficulty or disagreement, the matter should be referred to a Judge for directions at the earliest practical date, if possible at the first Case Management Conference.
2A.4 The existence of electronic documents impacts upon the extent of the reasonable search required by Rule 31.7 for the purposes of standard disclosure. The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following:-
(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. This includes:
(i) The accessibility of electronic documents or data including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents.
(ii) The location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents.
(iii) The likelihood of locating relevant data.
(iv) The cost of recovering any electronic documents.
(v) The cost of disclosing and providing inspection of any relevant electronic documents.
(vi) The likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection.
(d) The significance of any document which is likely to be located during the search.
2A.5 It may be reasonable to search some or all of the parties' electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.
5.4 In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances of the case and, in particular, the overriding objective described in Part 1. But if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligations imposed by an order for disclosure (whether by failing to make a sufficient search for documents or otherwise) the court will usually make such order as is necessary to ensure that those obligations are properly complied with.
THE CRESSWELL REPORT
"Computer files, including e-mails, are discoverable...However, the Court is not persuaded by the plaintiffs' attempt to equate traditional paper-based discovery with the discovery of e-mail files ....... Chief among these differences is the sheer volume of electronic information. E-mails have replaced other forms of communication besides just paper-based communication. Many informal messages that were previously relayed by telephone or at the water cooler are now sent by e-mail. Additionally, computers have the ability to capture several copies (or drafts) of the same e-mail, thus multiplying the volume of documents. All of these e-mails must be scanned for both relevance and privilege. Also, unlike most paper-based discovery, archived e-mails typically lack a coherent filing system. Moreover, data archival systems commonly store information on magnetic tapes which have become obsolete. Thus, parties incur additional costs in translating the data from the tapes into useable form."
"The application of these various discovery rules is particularly complicated where electronic data is sought because otherwise discoverable evidence is often only available from expensive-to-restore back-up media. That being so, courts have devised creative solutions for balancing the broad scope of discovery prescribed in [the rules] with the cost-consciousness of [the relevant rule]. By and large, the solution has been to consider cost-shifting: forcing the requesting party, rather than the answering party, to bear the cost of discovery."
"What constitutes a reasonable search may be regarded as being to a certain extent subjective and thus the disclosing party is given a degree of latitude in making standard disclosure."
Mr Nourse also referred to Nichia Corporation v Argos Limited  EWCA Civ 741 at  where Rix LJ said:
"Once attention is focused on the rationale of standard disclosure in the context of any relevant issue, it is possible to appreciate that it is those parties and their advisors who are in the best position to adopt the procedures which are both commensurate and proportionate."
".....the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."
ORDER IN RELATION TO BACK-UP TAPES
KEY WORD SEARCHES
ORDER IN RELATION TO KEY WORD SEARCHES
DISCLOSURE IN RELATION TO QUANTUM