2020-03-17
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A guide to disclosure

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Posted by Gemma Carson on 02 March 2020

Gemma Carson Partner - Head of Dispute Resolution

What is it and why do I need to do it?

A party to litigation has a duty to disclose certain documents that relate to the issues in the litigation and will be asked to sign a declaration to confirm that they understand their disclosure duties and that those duties have been complied with.

This is known as Disclosure. It is a vital stage of any litigation.

This note explains:

  • The most critical do’s and don’t’s relating to disclosure. It is vital that you read and understand this now.
  • The disclosure process. You will need to understand and use this once legal proceedings have started. It is sensible to familiarise yourself with it before then.

Do’s and don’ts

  • Do not destroy any documents that might be relevant to the dispute. The court rules require us to notify you, as soon as litigation is contemplated, of the need to preserve and retain disclosable documents.
  • Do not access, amend, delete or destroy any electronic documents that might be relevant to the dispute.
  • Do not create any new documents that might have to be disclosed in the litigation.
  • Do not mark or annotate any existing documents that might be relevant to the dispute.
  • Do not ask any third parties to send you documents.
  • Do discuss with lawyers first any documents you propose to circulate internally.

What do you need to disclose?

Your duty is to disclose documents. The term “documents” is defined under the court rules as anything on which information of any description may be recorded and includes:

  • Anything in which information of any description is recorded; for example videos, computer records, photographs, text messages, emails, machinery parts, materials and clothing as well as paper documents.
  • Electronic material that is not easily accessible, such as electronic documents stored on servers and back-up systems, and electronic documents that have been deleted.
  • Information stored and associated with electronic documents, known as metadata.

Documents that are, or have been, in your control

You are obliged to disclose helpful or damaging documents that are, or have been, in your control. "Control" has a specific meaning under the court rules. It is not limited to documents that you have (or previously had) in your possession. It also includes documents that you have (or had) the legal right to possess, inspect or copy (for example, documents held by your professional agents, such as other firms of solicitors, or accountants).

Confidential documents

Unless you have a right or duty to withhold inspection, you will not be able to prevent your opponent from seeing any documents that are required to be disclosed just because they are confidential. However, the court rules prevent a party that has acquired documents on disclosure from using those documents outside the litigation in which they are disclosed, except in certain circumstances, for example, if the court's permission is obtained.

If there are any commercially sensitive relevant documents that you do not want your opponent to see, we will need to consider whether and, if so, to what extent, we can ask the court to put in place some specific protective measures.

The disclosable documents will fall into 1 of 4 categories:

  • Relevant documents that you currently have, and which your opponent may view or "inspect". These documents will be listed either individually or by category;
  • Relevant documents that you currently have, but which your opponent may not inspect, for example, privileged documents
  • Relevant documents that you have had, but no longer have; or
  • Documents that your opponent will not be allowed to inspect (although their existence must be disclosed).

Privileged documents

Certain documents are privileged and do not need to be disclosed. The main categories of documents that are privileged are:

  • Confidential communications passing between a party and its legal advisers in which the party is seeking or obtaining legal advice. It applies to transactional advice as well as advice regarding contentious matters, and advice in the litigation itself. These documents are subject to legal advice or litigation privilege.
  • Correspondence and other communications generated as part of a genuine attempt to settle an existing dispute. These documents are subject to "without prejudice" privilege.

It is extremely important that you do not take any steps that might result in privilege being lost (or "waived"). This may occur if confidentiality in the material is lost. Therefore, please take care not to circulate any existing documents that might be relevant to the dispute until we have had the opportunity to discuss this with you.

Searching for documents

You will need to conduct a reasonable search for documents that are, or have been, in your control. This means that you are not obliged to carry out an exhaustive search for documents, sparing no expense and leaving no stone unturned.

What constitutes a reasonable search will depend on the facts of each case, but there are certain factors that the court will apply when assessing the reasonableness of a search. These include:

  • Number of documents;
  • Nature and complexity of the proceedings;
  • Ease and expense of retrieval of any particular document;
  • Significance of any document likely to be located during the search;
  • Accessibility of electronic documents (including email communications) on computer systems, servers, back-up systems and other electronic devices or media;
  • Location of relevant documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
  • Likelihood of locating relevant data;
  • Cost of recovering, disclosing and providing inspection of any relevant electronic documents; and
  • Likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection.

Searching for electronic documents

Depending on the circumstances, it may be reasonable to search for electronic documents by means of agreed keyword searches.

When determining the extent of the search for documents that is required in each case, the underlying principle is proportionality. The court will be looking to manage the disclosure exercise so as to facilitate a just outcome, but with an eye to balancing the sums in issue with the cost of the disclosure exercise.

Specific procedures apply for the disclosure of electronic documents (often referred to as edisclosure).

We will advise you on disclosure relating to your particular case to include whether e-disclosure is required. If it is required you may need IT consultants to assist with the search for electronic documents to ensure that no material is inadvertently destroyed or altered during the search process.

The process of disclosure

It is important that you provide us with all the relevant documents to the dispute so that we may provide you with full and accurate advice. The parties will be required to carefully consider disclosure prior to the first Case management Conference and will be given disclosure directions shortly thereafter.  The basic process for disclosure is:

Step 1: Preserve relevant existing documents, do not amend any relevant documents, and do not create any  new potentially relevant documents

Step 2: Consider what documents are potentially relevant and discuss those with us. We can advise you as to the extent of any search for documents and, where documents are not in your possession, advise as to whether they should be requested/searched for.

Step 3: Carry out the search, collate the relevant documents and send them to us for review and assessment.

Step 4: Determine which documents should be disclosed

Step 5: Prepare a list of documents / disclosure review document

Step 6: Provide Disclosure to your opponent and review their disclosure

Continuing duty and applications

Continuing duty

The duty of disclosure is a continuing duty. Therefore, if documents that are relevant to the issues in dispute come to light or are found during the course of the litigation, these documents will need to be disclosed regardless of whether a List of Documents/Disclosure Review Document has already been exchanged with your opponent.

Applications for disclosure

There are specific court rules dealing with requests and applications for disclosure of documents both prior to the commencement of court proceedings and for disclosure of specific documents during court proceedings. An application for specific disclosure can be made where one party believes that their opponent has documents which have not been disclosed. We will advise and discuss with you whether there is a requirement to make an application for disclosure.

Further information

Both parties to litigation will have an obligation of disclosure and this is an essential step in litigation which will often enable us to assess the strengths and weaknesses of your case. It is therefore vital that you understand the duty of disclosure and are able, with our assistance and advice, to comply with your duty.

About the author

Gemma Carson

Partner - Head of Dispute Resolution

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

Gemma Carson

Gemma specialises in commercial litigation and has a wealth of experience in dealing with all types of commercial contract dispute.

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