|An application for specific disclosure made five weeks before a trial which sought a search of a server containing two billion documents was too late, unlikely to uncover anything of relevance, and would be a disproportionately costly exercise.|
|The claimant applied for specific disclosure from the defendant in respect of a claim which was listed for trial in five weeks.
Disclosure had already been provided by the defendant who had carried out an electronic search of files and documents on its server within a relevant date period. Those results were described in its disclosure statement as the “captured data”. That data, rather than the entire server, was then searched using particular search terms. The defendant stated that the form of conducting the electronic search had been agreed by the parties. When the claimant discovered that the entire server had not been searched it asserted that it had thought that that had been done and issued the instant application a short time before the trial date. The defendant contended that a search of the entire server would not be helpful or proportionate, but it carried out a further search of the captured data using new search terms requested by the claimant and found nothing of relevance.
HELD: The application was simply too late. The parties had taken great care in deciding on the process and it had been carried out in accordance with what had been discussed and agreed. Perhaps there had been a misunderstanding on the claimant’s part. The further search of the captured data had produced nothing of relevance and that was a clear indication that it was most unlikely that a search of the entire server would uncover any relevant documents. Furthermore, there were two billion documents on the server and a search would cost £2 million. There were compelling reasons why the application could not succeed: it was too late, it was unlikely to be relevant, and it would be a disproportionately costly exercise.