How do you or your business conduct the majority of your day-to-day communications with customers, suppliers and other business contacts? Probably through a mixture of emails, text messages, letters and paper documents as well as face-to-face meetings.
Should a dispute arise, the content of written communications and other documents will be crucial to the case: they can establish the terms of a contract, record a verbal agreement, or otherwise clarify matters.
Both parties in a dispute must disclose (and preserve) all documents on which they rely to the other side. This is an obligation that extends even before any Court proceedings are issued.
Documents in this context have always been construed widely. Written documents (typed or handwritten), plans or drawings, photographs and even copies of the same document but with different markings or annotations are all potentially documents that must be disclosed.
Electronic documents are not exempt. The widespread use of emails in particular leads to several challenges for litigation in the 21st Century.
First, there is the huge volume of emails and other documents that can rapidly be generated which, although they take up little physical space electronically, can be massive if printed out.
Second, unlike a letter, an email is so easily written in haste and regretted at leisure. Even so it will still have to be disclosed if a dispute arises.
Finally, there is also the layer of "meta data" often hidden inside an electronic document. For example, there might be information about the routing of an email between the sender and recipient's servers or details of who last edited and saved a Word document. There might also be other files attached to an email. All of these extra details may only be available, or even visible, from the electronic file and not from a paper copy.
The disclosure process has had to evolve to take account of these developments.
The important practical point is that if a dispute looms large, both paper and electronic documentation must be preserved. It is also becoming common practice to submit documents electronically (including scanned paper documents) either via email or on disk or other electronic storage media, rather than providing paper copies.
You never know, that crucial document may well be hidden deep within your electronic disclosure.
For more information or advice on e-disclosure, please contact
Iain Colville.
