Disclosure. A Refresher
Disclosure is a costly and often overlooked and underestimated process in litigation which is currently going through a process of modernisation.
Disclosure is important in achieving a fair resolution of civil proceedings as it involves identifying and making available documents that are relevant to the issues in the proceedings.
The court expects the parties (and their representatives) to cooperate with each other and to assist the court so that the scope of disclosure can be agreed or determined by the court in the most efficient way possible.
The court will be concerned to ensure that disclosure is directed to the issues in the proceedings and that the scope of disclosure is not wider than is reasonable and proportionate in order to fairly resolve the claim.
A “document” may take any form including but not limited to paper or electronic; it may be held by computer or on portable devices such as memory sticks or mobile phones or within databases; it includes e-mail and other electronic communications such as text messages, webmail, social media and voicemail, audio or visual recordings.
In addition to information that is readily accessible from computer systems and other electronic devices and media, the term “document” extends to information that is stored on servers and back-up systems and electronic information that has been ‘deleted’. It also extends to metadata, and other embedded data which is not typically visible on screen or a print out.
Disclosure extends to “adverse” documents. A document is “adverse” if it or any information it contains contradicts or materially damages the disclosing party’s contention or version of events on an issue in dispute or supports the contention or version of events of an opposing party on an issue in dispute.
If you know that you or your organisation may become a party to proceedings which have commenced, or you know that you may become a party to proceedings that may be commenced, you are under the following duties (“the Disclosure Duties”) to the court:
The duties are continuing duties that last until the conclusion of the proceedings (including any appeal) or until it is clear there will be no proceedings.
Documents must be preserved and this includes documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business. Preservation includes, in suitable cases, making copies of sources and documents and storing them.
There is an obligation on you to:
However, new rules to govern disclosure of documents in litigation are being piloted in the Business and Property Courts which will commence on 1 January 2019. The pilot will be limited to the Business and Property Courts but it is expected that, if it is a success, it will lead to wider reforms to disclosure.
The rules have been amended in an effort to clarify the provisions relating to disclosure of known adverse documents, in particular, the proposed rules contained an express duty to disclose documents a party “knows to be or to have been in it control and adverse to its case”, regardless of any order for disclosure. If this proposed rule is subsequently enacted it could result in much quicker resolution of issues and savings in costs but there is much debate as to the exact scope of the proposed rule.
We will be keeping an eye on the effect of the Pilot Scheme and provide updates in due course which could change the face of litigation.
If you wish to discuss this further please contact Laura.
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