A summary of the rules of disclosure and an update on the expanding use of electronic disclosure
This is the fifth article in a series focusing on specialist skills and knowledge in civil litigation. We have previously considered the skills needed to prepare court bundles (February 2009); without prejudice correspondence (March 2010); pre-action protocols (June 2010); and legal costs in litigation (August 2010).
When we considered pre-action protocols it was noted that any case rests on the evidence. In particular, the importance of exchanging evidence early was highlighted. What was not considered was exactly how parties disclose evidence.
Parties usually have to disclose information in the following circumstances:
The extent of documents which a party can be required to disclose depends on the size of the claim. In general, any document which has been in a party’s control can potentially be subject to a duty to disclose. This will apply even if a document does not support a party’s own case. The only key exceptions to this blanket duty to disclose applies to documents which are privileged (such as correspondence between a solicitor and client) and without prejudice communication where they form a genuine attempt to settle a claim.
In recent years one factor which has made the subject of disclosure much more important is the commonplace existence of potentially huge amounts of electronic documentation. In the same way that paper copies of documents must be preserved, disclosed parties are responsible for identifying, preserving and collecting potentially relevant data that is stored electronically. Part of a litigator’s job now is to advise clients about their duties to disclose and help identify cost-effective and relatively quick ways to review relevant data.
If a party decides to alter, delete, ‘lose’ or destroy information, they can find themselves the subject of separate litigation and/or of having their statement of case struck out.
To give you an example of the kinds of advice solicitors will provide a client, consider this extract from a memo to a corporate client about disclosure and privilege:
“You may face a legal dispute and must take appropriate steps to preserve all documents. If the dispute is not resolved, you will be obliged to disclose all relevant documents that are or have been in the company’s control.
Do not create any notes or written communications (including emails) discussing this matter unless instructed to do so by our firm. Any documents created must be marked ‘Confidential and Privileged’.
These rules apply to all paper documents and electronic documents including emails, text messages, computer disks, databases and word processed files.”
The above extract is only a brief summary of the usual standard advice a client is given, but it demonstrates how seriously a client should take the extent of disclosure when legal proceedings are contemplated.
Where you can fit in when dealing with the issue of disclosure may be as a support in preparing documents for disclosure. As you develop your skills you may find that with better than average IT skills you could become an ‘e-disclosure’ expert in your own right.