2020-04-16
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A guide to disclosure under the disclosure pilot

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Posted by Laura Heeley on 16 April 2020

Laura Heeley - Litigation Lawyer
Laura Heeley Solicitor Advocate

What is disclosure?

Disclosure involves identifying and making available documents that are relevant to the issues in dispute to the other parties to the case.

It is important to note that “document” is defined very widely.  A document may take any form including, but not limited to, paper or electronic; and may be held on a computer or portable devices, such as memory sticks or mobile phones or within databases. It includes emails and other electronic communications such as text messages, webmail, social media, and voicemail, audio or visual recordings. It extends to information that is stored on servers and back-up systems and electronic information that has been “deleted”. It also extends to metadata, and other embedded data that is not typically visible on a screen or a print-out: for example, details of the time and creation, or modification, of a document, or the author, date and time of sending an email. Metadata may be created automatically by a computer system or manually by a user.

The disclosure obligations

The duty of disclosure is strict, and the courts take it very seriously. As your legal representatives, we are under an express duty to inform you of the duties that you are required to comply with, and to ensure that you understand them. If anything in this guidance note is unclear, please let us know, and we will be happy to provide further information.

In summary, the parties to a dispute and their legal representatives are obliged to:

  • Take steps to preserve relevant documents
  • Co-operate with the other parties
  • Assist the court with identifying the documents to be disclosed and resolving the dispute fairly.
  • Ensure that disclosure is focused, relevant to the issues in dispute and proportionate to the amount in dispute

Failure to comply with the express duties set out in the rules can result in sanctions, including an order for you to pay costs, so it is essential to ensure that all of the necessary steps are taken.

Document preservation

The court rules specify a number of steps that must be taken so as to ensure that potentially relevant documents are preserved. It is essential that these are complied with. Failure to comply could result in adverse inferences being drawn, and may also give rise to costs sanctions.

It is important to note that documents to be preserved include documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business.

The court rules expressly require you to take the following steps to ensure that potentially relevant documents are preserved:

  • Suspend any relevant document deletion or destruction processes for the duration of the proceedings.
  • Send a written notification to all relevant employees, and former employees, identifying the classes of documents required to be preserved, and notifying them that they should not delete or destroy those documents, and should take reasonable steps to preserve them.
  • Take reasonable steps so that agents or third parties who may hold documents on your behalf do not delete or destroy documents that may be relevant to an issue in the proceedings.
  • Provide your legal representative with written confirmation that you have taken these steps.

These steps should be taken as soon as possible. Failure to comply with document retention requirements could lead to the court drawing adverse inferences: for example, if any potentially relevant documents are destroyed. Please contact me straight away if you have any queries, or if there are likely to be practical difficulties in implementing the required document preservation steps.

Suggested forms of notification to be sent to employees, former employees (if applicable) and agents or third parties who may hold relevant documents, can be provided if required.

The rules expressly require me to obtain written confirmation from you that these steps have been taken so I would be grateful if you could send me a completed version of the enclosed letter to confirm when all of the necessary steps have been actioned.

Throughout the disclosure process, it will be important to record all of the steps that you have taken to comply with your obligations, as the court might ask to see evidence. This should include details of all the employees, former employees, agents and third parties who have been contacted, and the date when they confirmed that they would comply with the requirements. Reminders should be sent from time to time, if necessary, and the dates when these are sent should also be documented.

Your express duties of disclosure

  • To take reasonable steps to preserve documents in your control that may be relevant to any issue in the proceedings. This includes (i) documents that are (or were) in your physical possession, (ii) documents in respect of which you have (or had) a right to possession or (iii) documents in respect of which you have a right to inspect or take copies (for example, documents held by your third-party professional agents, such as other firms of solicitors or accountants).
  • To disclose “known adverse documents”, in accordance with the timings specified in the rules. This means documents that either contradict or materially damage your contention or version of events on an issue in dispute, or support the contention or version of events of an opposing party on an issue in dispute. When we consider the requirement to disclose known adverse documents, it will be necessary to consider documents that you are aware of. For corporate entities, this includes documents that any person within the organisation, who has accountability for the events or circumstances which are the subject of the case, or has the conduct of these proceedings, is aware. There is no requirement to undertake any searches for this purpose. It will also be necessary to take reasonable steps to check the position with any person who previously had such accountability or responsibility but has since left the business.
  • To comply with any order for disclosure made by the court (which will usually be at the first CMC, after each party has provided details of what disclosure it considers to be reasonably required).
  • To undertake any search for documents, that is ordered by the court, in a responsible and conscientious manner to fulfil the stated purpose of the search.
  • To act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party.
  • To use reasonable efforts to avoid providing documents to another party that have no relevance to the issues in the proceedings on which disclosure of documents is required.

These are continuing duties that will last until the conclusion of the proceedings (including any appeal) or until it is clear that there will be no proceedings.

Our express obligations

As your legal representatives, Wright Hassall LLP also owes express duties to the court in conjunction with the disclosure process, namely:

  • To take reasonable steps to preserve documents within our control that might be relevant to any issue in the proceedings.
  • To take reasonable steps to advise and assist you to comply with your disclosure duties.
  • To liaise and co-operate with the legal representatives of the other parties to the proceedings (or the other parties if they do not have legal representation) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology.
  • To act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party.
  • To undertake a review to satisfy ourselves that any claim to privilege from disclosing a document is properly made and that the reason for the claim to privilege is sufficiently explained. Confidential communications passing between a party and its legal advisers, in which the party is seeking or obtaining legal advice, will be subject to legal advice privilege. Certain confidential communications made when litigation is likely, or has begun, passing between a party and its legal advisers, a party and third parties (for example, potential witnesses) and, in certain circumstances, the legal advisers and third parties, where the main purpose of the communication is to seek or obtain evidence for use in the litigation, or to provide advice on the litigation will be subject to litigation privilege.

This guidance note is just the starting point, and we will provide ongoing guidance and information on the disclosure process, as the case progresses.

Assisting the Court with disclosure

The court expects the parties (and their representatives) to co-operate with each other, and to assist the court, so that the scope of disclosure that is required (if any) can be agreed, or determined by the court in the most efficient way possible. 

The court will be concerned to ensure that disclosure is directed to the issues in the proceedings, and that the scope of disclosure is not wider than is reasonable and proportionate in order to resolve those issues fairly.

Failure to comply with the disclosure obligations

Where there has been or may have been a failure adequately to comply with an order for Extended Disclosure the court may make such further orders as may be appropriate, including an order requiring a party to:

  1. serve a further, or revised, Disclosure Certificate
  2. undertake further steps, including further or more extended searches, to ensure compliance
  3. provide a further or improved Extended Disclosure List of Documents
  4. produce documents
  5. make a witness statement explaining any matter relating to disclosure

Sanctions for failure to comply

Throughout disclosure the court retains its full powers of case management and the full range of sanctions available to it.  In particular the court may:

  • adjourn any hearing;
  • make an adverse order for costs;
  • order that further disclosure by a party be conditional upon any matter the court shall specify;
  • deal with the failure as a contempt of court in appropriate cases

Co-ordination of the disclosure process for businesses

For corporate entities, it is helpful to identify someone within the business who will be responsible for co-ordinating the disclosure exercise.

It should be someone who is willing to sign a Disclosure Certificate to be given to the court on your behalf, confirming that disclosure has been properly completed, and who will be able to attend the first case management conference (CMC) (the procedural court hearing at which the judge will make the court order for disclosure). The court will ask us to explain why the person signing the Disclosure Certificate is appropriate. Continuity is important, so it will be helpful to identify someone who can stay involved through the entire process, and case, if possible.

The documents we will need you to sign

  1. It will be necessary for you to confirm in writing, when serving your statement of case, that the necessary steps have been taken to preserve relevant documents.
  2. At a later stage in the process, it will be necessary to sign a document known as a Disclosure Certificate, which is supported by a statement of truth. Among other things, this will confirm that you have taken reasonable steps to preserve potentially relevant documents. Proceedings for contempt of court may be brought against a person who signs, or causes to be signed by another person, a false Disclosure Certificate, without an honest belief in its truth.

Some important “Do’s and Don’ts’

  • Do not search for documents until we have had a chance to discuss the claim in more detail. There is no search obligation for the purposes of providing Initial Disclosure. We need to discuss the appropriate approach. Note that it will be necessary to keep a record of any searches that are undertaken (or caused to be undertaken) and to provide the court with brief details.
  • Do not create new documents (or annotate or amend existing documents) relating to the dispute without discussing it first with us. It is very important that you do not create any new documents that might have to be disclosed to that could damage your case.
  • Some documents that are created may be protected by litigation privilege. However, you will need to monitor carefully any communications about the dispute by personnel within your organisation, whether internal or external. This includes communications between, or involving, those who are not witnesses or potential witnesses, or who are not involved in making decisions about the way in which the litigation should be conducted. It may be appropriate to inform your employees not to communicate about the dispute at all, unless they are instructed to do so. In any event, you should inform them to take particular care when using email.
  • You should also inform employees not to amend, or in any way annotate, existing documents. Documents containing any relevant annotations will be treated as separate documents and may need to be disclosed even if the original document was not disclosable. Informal annotations, in particular, can be prejudicial to the case of the party that might be obliged to disclose them.
  • Discuss with me, first, any documents that you propose to circulate internally.
  • Do not ask anyone to send documents to you without talking to us. It is extremely important that neither you nor any employees ask any third parties to send to you (or us) documents that may relate to the dispute, until we have had the opportunity to assess the documents they propose to send.  It is likely, however, that most documents held by professional third parties on your behalf are, on a proper analysis, within your control. If so, those documents will possibly be disclosable.
  • Ensure that nothing is done that might damage metadata associated with electronic documents. Where you have an IT manager or consultant, tt would be helpful if your IT manager could be involved in our discussions regarding the disclosure process. We should also consider whether IT consultants should be engaged to assist with retention of electronic documents, to ensure that no material is inadvertently destroyed or altered. Please let me know if you would like me to obtain quotes from potential e-disclosure providers.
  • Ensure that you comply with relevant data protection requirements. It will be important to ensure that you keep in mind the relevant data protection requirements, including those that apply under the General Data Protection Regulation ((EU) 2016/679).

About the author

Laura Heeley

Solicitor Advocate

Laura specialises in commercial disputes resolution, sports regulatory matters and equestrian disputes.

Laura Heeley

Laura specialises in commercial disputes resolution, sports regulatory matters and equestrian disputes.

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