10th July 2023
In commercial disputes, parties often place substantial reliance on documents to prove their claim. Disclosing such documents to the other party is an essential part of the litigation process. It ensures all parties have access to the same information and have time to prepare for a fair hearing. In this article, we set out a short overview of the disclosure process.
Parties who go to court in England and Wales to resolve their dispute are obliged to disclose to each other the existence or past existence of ‘documents’ which are relevant to the disputed issues, including any document on which they rely and/or which may adversely affect their case . A party does not have to go to extreme lengths to find relevant documents in or formerly in its control: the search need only be reasonable in the context of the facts of the dispute and the extent of the documents.
Parties have long had the duty in legal proceedings to disclose hard copy documents to the other party which are relevant to the dispute to help prove or disprove a claim. Now, however, that duty of disclosure also covers electronically stored information (ESI). Disclosable documents can therefore now take any form, including but not limited to paper or electronic. Documents may be held on computers or portable devices such as memory sticks or mobile phones, or may be held within databases. Documents include e-mail and other electronic communications such as text messages, webmail, social media, voicemail, audio or visual recordings. Documents also extend to information that is stored on servers and back-up systems; electronic information that has been ‘deleted’; and even to metadata and other embedded data. The amount of ESI and disclosable documents potentially relevant to a dispute can be surprisingly high and can span both work and personal documents.
eDisclosure is the process of collating all forms of ESI which are relevant to the issues in dispute and disclosing them to the other side for inspection. This process can be highly technical and complex. It can often require technical experts to assist in the proper, safe recovery and sorting of material.
Technological advances mean that software can be used to facilitate the eDisclosure process. Experts can and in some cases should be used to extract and sort the relevant e-documents from a party’s electronic devices. Without such expertise, the metadata for documents can be damaged and the evidence could be compromised. Experts can also use software to filter large numbers of documents to reduce the number of documents that the parties’ solicitors have to review.
Solicitors must ensure their clients preserve all relevant documents from the moment a dispute becomes likely. They also have a duty to ensure proper disclosure takes place and to advise their clients on privileged documents so that the clients do not inadvertently waive their right to assert privilege.
Clients retain the duty to disclose (and preserve) relevant documents right up until the dispute settles or judgment is given.
There are a range of options for conducting the disclosure process. This means that the most appropriate disclosure procedure for the particular dispute, and for the volume and nature of documents, should be used. A judge will only order a particular approach if it is proportionate and necessary to deal with the case justly.
Once a dispute starts, the disclosure procedures relating to the collation and disclosure of documentary evidence might include some or a combination of the following depending on the type of case, the parties and the orders made by the judge:
If you are involved in litigation, we can provide expert legal assistance from the outset. We can advise you of your disclosure duties and support you to ensure all relevant documents are preserved, found and disclosed. We can also advise whether the law of privilege may enable the withholding of certain documents from disclosure/inspection. If documents are discovered late in the proceedings, that can potentially harm your case. If you find documents during the proceedings and are not sure of their relevance, always speak to your solicitor.
 See Walker Morris’ note on the law of privilege. Privilege may enable a party to withhold certain documents from disclosure.