Disclosure is the process used in litigation to disclose to each other documents which are relevant to the matters in issue in the proceedings. It should be done with great care as it can determine the outcome. The statements of case determine which documents are relevant. Generally, all relevant documents must be disclosed, no matter how damaging they may be to your case. The court does have the power to decide the nature and scope of disclosure which includes the power to dispense with it all together. However, before a decision is made, the court expects the parties to discuss and if possible, agree the nature and scope of disclosure.
Often, disclosure is made by preparing and serving a list which describes the relevant documents. This list is supported by a disclosure statement. Usually, each party offers the other party an opportunity to inspect the originals in person or to supply copies of the requested documents. It is normal to pay a fee for photocopies. It is now common for parties to exchange the relevant documents electronically. The parties should agree the format.
What is a document?
The CPR defines a document as “anything in which information of any description is recorded”. This includes, drafts, copies, letters, emails, faxes, notes, diary entries, video or audio recordings, databases, and computer files on any type of storage media. All of which must be disclosed regardless of how confidential it may be. The definition of documents even extends to metadata, deleted documents, and documents stored of back up servers or tapes. This list is not exhaustive. You will be expected to examine your own documentary system to identify all the relevant documents.
Duty to preserve:
Once a party becomes aware of the possibility of litigation that party is under a duty to preserve and keep from destruction all documents which may become disclosable in the matter. This includes electronic documents. A failure to preserve documents or give proper disclosure can result in financial penalties, judicial criticism, or adverse interference which is damaging to the case.
What documents must be disclosed?
The court has the power to decide the extent of disclosure. The parties can also put forward their proposals as to which documents should be disclosed and how it should take place. The court will consider the overriding objective when making its decision. One option for the court is to order “standard disclosure” which is limited to the following categories;
- the documents on which you rely;
- the documents which adversely affect your own case;
- the documents which adversely affect another party’s case; and
- the documents which support another party’s case.
However, judges are increasingly expecting the parties to consider alternative forms that might save costs and/or be more appropriate. The court may simply order that each party discloses the documents they wish to rely on and provide details of the documents they want the other party to disclose. The court may direct disclosure to be on an issue-by-issue basis.
A party only needs to disclose documents which are or have been in that party’s control which means it is or was in their physical possession; they have or have had a right to possession of it; or they have or had a right to inspect or take copies of it.
When giving standard disclosure, a party is only required to disclose documents which have been found by a “reasonable search”.
Documents that need not be disclosed:
Generally, everything listed in the above categories must be disclosed. However, some documents may be privileged. If it is privileged the document must still be listed but it does not need to be shown to the other party.
The broad grounds of privilege are; legal advice privilege; litigation privilege; privilege from self-incrimination; privilege related to “without prejudice” documents and public interest immunity. However, as a general rule you cannot withhold documents merely because they are sensitive or confidential.