We are all familiar with the Hollywood courtroom drama: at the critical moment the lawyer reveals a (previously undisclosed) document with an Oscar-worthy flourish that proves his client’s case and saves the day. The champagne corks pop and the end credits roll.
That’s what it’s like in real life, right?
Actually, no. In fact, if a party left the disclosure of a key document (that had been in their possession or control all along) until the last minute, the Court is very unlikely to be impressed and may even penalise that party in terms of costs.
Litigation in England and Wales is based on a ‘cards face up on the table approach’. During the course of a claim, parties have a mutual obligation to disclose to the other all documents that are relevant to the dispute which are in their possession or control. The rationale is to encourage a full exchange of information, allowing the parties to assess the strengths and weaknesses of their cases, narrow the issues and/or reach a settlement without incurring the costs of going to trial.
Here are some frequently asked questions about the process.
What should I disclose?
The Court rules refer to ‘documents’ but the definition is incredibly wide and covers electronic as well as hard copy documents. Examples include letters, emails, agreements, notes, calendar entries, minutes, voicemails and even text messages. The disclosure obligation even extends to ‘metadata’, i.e. the data that lies behind an electronic document, such as information about the date that document was created.
How does disclosure take place?
There is a difference between disclosing documents and inspecting them. Disclosure involves telling the other side what documents you have in your possession or control and this is done by way of an itemised list of every single document. After lists have been exchanged, the parties have a right to inspect those documents (subject to any documents being ‘privileged’ from inspection).
When should I start thinking about disclosure?
You should take steps to preserve documents as soon as a dispute is in contemplation. If you operate a document retention policy you should make sure that this is suspended and communicate this to anyone who may otherwise delete or destroy documents in the ordinary course. Be aware, however, that the disclosure obligation is an ongoing one, which means that if new documents are created or come into your possession after disclosure has been given, those new documents should be disclosed immediately.
Who in my business needs to know about disclosure?
This will really depend on the facts of the case. As a starting point, think about who was involved in the background to the dispute: who received emails or other correspondence, who attended meetings, who negotiated agreements? But also think more widely: who operates your document retention policy? Who can help you retrieve emails from your server? It is important that all of these people are fully aware of your disclosure obligations.
Spoiler alert: it’s not like the movies…
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