An overview of the Disclosure processPrint publication
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. We set out a short overview of Disclosure for those not familiar with the process.
What is disclosure?
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. 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.
Once disclosed, the documents can be inspected unless the disclosing party no longer has them, or has a right to withhold them or it would be disproportionately expensive to arrange inspection. However, Disclosure is not an automatic process: the parties must seek a disclosure order from the court.
Disclosure is an essential part of the litigation process. It enables the parties to learn more about each other’s case and to identify documents which might strengthen – or weaken – their claim or defence. The procedure is governed by the Civil Procedure Rules (Parts 31, 31A and 31B) and the Court Guides.
What is eDisclosure?
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 electronic documents (e-documents). The amount of electronically stored information (ESI) potentially relevant to a dispute can be surprisingly high and can span both work and personal documents.
eDisclosure is the process of collating e-documents 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.
The use of forensic computer experts for eDisclosure
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.
The definition of documents
For the purposes of disclosure, the definition of ‘documents’ is wide. It means anything in which information of any description is recorded and as well as including hardcopy documents such as letters, contracts, diaries and so on, it also includes e-documents such as emails, texts, tweets, blogs and Facebook posts.
The definition also covers those documents stored on servers and back-up systems and e-documents that have been ‘deleted’ as well as all additional information stored and associated with e-documents known as metadata which might not be visible on a screen or print out.
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.
Menu of disclosure options
Following recent reforms to the Civil Procedure Rules (CPR), parties are now free to choose from a range of disclosure options. This means that the most appropriate disclosure procedure for the particular dispute can be used. A judge will only order a particular approach if it is proportionate and necessary to deal with the case justly. Examples from the menu of options set out in CPR 31.5(7) include:
- no disclosure at all;
- standard disclosure in which a party must disclose those documents that adversely affect its own or the other party’s case or support another’s case or that must be served pursuant to a practice direction. (Before the CPR reforms, standard disclosure was the norm for multi track cases (the more complex, higher value claims). Now however, it remains an option but will not be the automatic choice); and
- such disclosure as the court thinks appropriate.
Disclosure – the procedure
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:
- an informal exchange of the key documents by the parties at the outset to help support the claim/defence and promote settlement;
- a review by the parties’ solicitors of the facts and legal issues to ascertain for example, who the key witnesses will be, the likely documentary evidence and where it might be located;
- advice by the solicitors on preserving the documents and against creating new documents;
- the early consideration of the Electronic Documents Questionnaire (See form N264) to consider whether there are e-documents to be disclosed (and where they are located);
- early discussions between the parties on the type of approach to take to Disclosure and the most appropriate way to deal with e-documents;
- the parties complete the directions questionnaire in which they will set out their approach to disclosure;
- filing the Disclosure report verified by a statement of truth before the Case Management Conference (CMC). This document sets out what documents exist or existed, where they are stored, how e-documents are stored and how much it could cost to search and disclose them and a note of which Disclosure orders will be sought at the CMC. (For a look at the court template of this document, see Form N263);
- the parties then prepare for the CMC. They will discuss their proposed disclosure options, agree them where possible and start to search for and review documents;
- at the CMC, the judge will make a disclosure order setting out what each party must do and within what timescale and which experts can be used;
- if standard disclosure is chosen, Disclosure is usually carried out by the parties’ exchange of a list of documents setting out what documents are relied on, which affect /support their cases and which are required to be served by a practice direction. (For a look at the court template of this document, see Form N265). The list must include a disclosure statement confirming the extent of the search, that the person signing understands the duty of Disclosure and that that duty has been carried out;
- the parties review each other’s lists and proceed to inspection. A party’s right to inspect documents is normally effected by exchanging copies;
- if one party considers the other’s list to be incomplete or inaccurate, there may be a challenge to Disclosure.
If you are involved in litigation, it is essential that you cooperate with your solicitor to ensure that all relevant documents are found and disclosed. If documents are discovered late in the proceedings there is a chance that they will not be admitted and this can potentially harm your case. If you find documents during the proceedings and are not sure of their relevance, always speak to your solicitor.
If you would like a copy of our checklist for directors ‘Disclosure Duties and preserving documentary evidence at the start of a dispute’, please email Gwendoline Davies.