In litigation, parties are required to disclose to each other any documents that damage their case, as well as any helpful documents. Therefore, the disclosure process forces parties to be realistic about their chances of success in the litigation and, for that reason, many disputes settle either shortly before or shortly after disclosure.
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What is the duty of disclosure?
In litigation, The purpose of disclosure is to make available evidence which either supports or undermines the respective parties’ cases. Under CPR 31, parties are required to disclose to each other any documents that damage their case, as well as any helpful documents.
Do parties have to disclose all documents in litigation?
The duty of disclosure is strict, and the court takes it very seriously. The underlying principle is that the court can only deal with a case fairly and justly if all of the relevant material is preserved and disclosed.
What is standard disclosure?
The most common order by the court is for what is known as standard disclosure. This requires each party to disclose to the opposing party the documents on which it relies, those that adversely affect its case or another party’s case, and those that support another party’s case.
The Civil Procedure Rules set out a procedure to be followed when giving standard disclosure. Under that procedure, the documents are usually disclosed by serving a list of documents on the opposing party.
What other disclosure orders can be made by the court?
Other possible orders that the court might make in relation to disclosure are as follows (although in practice these orders are rarely made):
- An order for a party to disclose the documents on which it relies and, at the same time, to request any specific disclosure it requires from any other party;
- An order that directs, where practicable, disclosure to be given by each party on an issue-by-issue basis;
- An order for each party to disclose documents which may reasonably contain information that will enable that party to advance its own case or damage the case of any other party, or leads to an enquiry that has either of those consequences;
- An order dispensing with disclosure (although this is unlikely); or
- Any other order that the court considers appropriate.
What is a disclosure report?
In multi-track cases, the Civil Procedure Rules provide that each party must file and serve a disclosure report not less than 14 days before the first case management conference (CMC). However the court can order that the disclosure report be filed and served earlier. In particular, the practice of the Chancery Division is to require the disclosure report to be filed and served at the same time as the Directions Questionnaire.
What must a disclosure report contain?
The disclosure report must:
- Briefly describe matters such as the documents that exist that are (or may be) relevant to your case and where, and with whom, the documents are (or may be) located;
- Describe how any electronic documents are stored;
- Estimate the broad range of costs that could be involved in giving disclosure (whether it is standard disclosure or otherwise), including the costs of searching for and disclosing electronic documents); and
- State which type of disclosure order will be sought.
How much documentation has to be disclosed in litigation?
Specialist litigation solicitors must carefully consider what might be the most appropriate approach to disclosure in your case, to ensure that what is proposed is proportionate. This is something we should discuss in detail once we have done some preliminary scoping in relation to the likely volume of documentation and how many electronic documents will have to be disclosed.
Not less than seven days before the first CMC, the parties must discuss (and seek to agree) a proposal for the disclosure exercise. In many cases, it will be necessary to begin these discussions at a much earlier stage. This is because much modern litigation (including most cases dealt with by this firm) involves a very large volume of documentation (including electronic documents) and it is important that the parties co-operate to agree a way of conducting the disclosure exercise which ensures that relevant material is disclosed while minimising the time and costs to be expended.
What is the definition of “document” in disclosure?
Your duty is to disclose documents. “Document” has a very wide meaning under the Civil Procedure Rules. It includes all media in which information of any description is recorded: for example, tapes, computer records and emails, as well as paper.
The definition of a document also extends to 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. It also includes information stored and associated with electronic documents, known as metadata.
What is the definition of “control” in disclosure?
Parties in litigation are obliged to disclose helpful or damaging documents that are, or have been, in your control. “Control” also has a specific meaning under the Civil Procedure 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, any documents held by your third-party professional agents, such as other firms of solicitors or accountants).
What is a “reasonable search” in the disclosure exercise?
When giving standard disclosure, a party’s obligation in litigation is to conduct a reasonable search for documents that are, or have been, in its control. It is therefore necessary to conduct a thorough search. In some cases it will be appropriate to outsource the search exercise to a third party as specialist skills may be required (e.g. to copy and search electronic documents while preserving the metadata) and the involvement of an independent third party may make it harder for the opposing party subsequently to claim that the search has been conducted inadequately.
Can I conduct disclosure myself?
In other cases it may be appropriate that you conduct the search yourself, in which case specialist litigation solicitors should provide you with instructions as to how this should be done. Clients frequently underestimate the extent of the search required and it is important that you strictly follow any instructions from a lawyer.
What constitutes a “reasonable search” in litigation?
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:
- The number of documents;
- The nature and complexity of the proceedings;
- The ease and expense of retrieval of any particular document; and
- The significance of any document likely to be located during the search.
When considering the ease and expense of retrieval of electronic documents, specific points to consider include:
- The accessibility of electronic documents (including email communications) on computer systems, servers, back-up systems and other electronic devices or media;
- The location of relevant documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
- The likelihood of locating relevant data;
- The cost of recovering, disclosing and providing inspection of any relevant electronic documents;
- The likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection; and
- The availability of electronic documents (or contents of electronic documents) from other sources.
What is a keyword search in disclosure?
In most cases, the search for electronic documents will be by means of agreed keyword searches. As noted above, agreeing appropriate keywords forms an important part of the work to be done prior to the first CMC. It may assist in this process to establish a document database at an early stage in order to identify how many documents will be caught by a proposed keyword.
What is a list of documents in disclosure?
If lists are to be exchanged, specialist litigation solicitors will then draft a list of the documents that must be disclosed.
The disclosed documents will be described in the list of documents in one of the three sections:
- Relevant documents that you currently have, and which your opponent may view or “inspect”. These documents will be listed either individually or by category. (In practice, the documents are provided as copies and not actually inspected.)
- Relevant documents that you currently have, but which your opponent may not inspect: for example, privileged documents (see below). By convention, these documents are described generally.
- Relevant documents that you have had, but no longer have. By convention, originals of documents that have been sent to third parties are described generally, but if there are documents likely to be relevant to the matter that you previously had but do not retain, these will need to be identified as specifically as possible.
Which documents are privileged in disclosure?
The main categories of documents that are privileged are:
- Confidential communications passing between you and your legal advisers, in which you are seeking or obtaining legal advice. It applies to transactional advice as well as advice regarding contentious matters. These documents are subject to legal advice privilege.
- Confidential communications made when litigation is likely or has begun, passing between you and your legal advisers, where the main purpose of the communication is to seek or obtain evidence for use in the litigation, or to obtain or provide advice on the litigation. These documents are subject to litigation privilege. This also applies to communication between your lawyers and third parties in connection with this litigation.
- Certain confidential communications between you and certain third parties, where the main purpose of the communication is to obtain legal advice on the litigation. These documents are also subject to litigation privilege. However, please note that the scope of litigation privilege applying to communication between non-lawyers is limited.
- Correspondence and other communications generated as part of a genuine attempt to settle an existing dispute. These documents are subject to “without prejudice” privilege.
Do I have to disclose 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 Civil Procedure 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. Sometimes, for example, it is possible to obtain an order that an opponent’s legal advisers (but not the opponent) may inspect those documents.
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