Discovery is a crucial part of the litigation process where parties to the proceedings must disclose to the other side the existence of all relevant documents within their “power, possession or procurement”. Discovery can be a complicated and protracted process; however, with forethought and planning, many of the pitfalls can be avoided.

Dealing with documents

While this may seem obvious, the definition of what a document is has changed significantly in recent of years. The traditional discovery process which only involved paper files is a thing of the past. 

  • Don’t forget that a document is anything within which information of any description is recorded – for example: emails, text messages, instant messages, social media, spreadsheets, voicemails and any other data source which is used to record information
  • Do identify your sources and obtain a clear understanding where the documents are likely to be stored 
  • Do review all data sources including phones, tablets or any other electronic device on which relevant documents are accessed and stored
  • Do identify your staff/agents who are likely custodians of the documents

Data Retention

Once litigation is threatened or contemplated, you should immediately ensure the retention and preservation of all potential documents, both active documents and those in storage or archive. 

  • Do identify all staff members who may have been involved in the particular matter and whose documents (including emails, texts, voicemails etc.) should be preserved
  • Don’t allow any potentially relevant information to be destroyed, particularly if you have a routine document destruction policy in place in your company
  • Do put in place a retention policy to ensure documentation retention from the outset - it is important that the documents are not interfered with and are preserved

Preparation 

Preparation and project management are key when undertaking a large discovery exercise.

  • Don’t waste time waiting for discovery to be formally sought as this can leave little time to tackle all that might be involved
  • Do create a clear plan setting how the discovery will be undertaken at the earliest possible stage
  • Do set out who is responsible for each step and the timelines involved
  • Do engage your IT team from the outset
  • Do collect all data from all relevant personnel while onsite as this is efficient and cost effective -if further collections have to be carried out or further documents added at the review stage, this can delay the process and can increase the costs 
  • Do make requests for collection well in advance of when the review phase is due to start if collection is likely to take some time, for example, if documents are stored on external servers

    Key takeaways

  • Start the process early
  • Identify where the documents are stored 
  • Identify who has the documents 
  • Create a detailed plan for your discovery process
  • Ensure documentation retention from the outset so the documents are not interfered with and are preserved