Key Points:

It is important at an early stage to understand the duty of disclosure and the sources of potentially relevant documents.

Disclosing documents in litigation can be arduous. It can also be costly, both in time and money, particularly where there are inefficiencies in the process.

Incomplete or inadequate disclosure may expose you to adverse consequences, such as limiting the evidence available at trial to a worst case of exposure to liability for contempt. While having a robust internal document management system is a crucial first step for ensuring your organisation is dispute-ready, you must also be ready for the actual process of document identification, extraction and production, and manage it prudently.

While this might seem as pleasant as pulling teeth, we'll map out an efficient and effective disclosure process for locating documents within your organisation over the next two articles which will minimise the pain. We'll start by covering:

  • the duty of disclosure;
  • the need to only disclose "documents"; and
  • where to start looking for documents.

The duty of disclosure

Generally, there will be a duty of disclosure whether you're involved in litigation in the State or Federal systems, but there can be subtle differences between them.

In civil litigation in the Queensland court system, for example, a party is required to disclose to each other party non-privileged documents which are:

  • in the party's possession or control; and
  • directly relevant to an allegation in issue in the pleadings. [1]

In this context, a document is "directly relevant" if it tends to prove or disprove the truth of an allegation in issue. Whether or not a document is directly relevant depends on the circumstances of the particular case.

The crucial points to understand about the duty of disclosure are:

  • the duty continues until the proceeding is decided. This means that if new documents are created or located after the first exchange of documents, those additional documents also need to be disclosed;
  • if a document is not within your possession but you have a power to call for it, that document must also be disclosed as it is within your "control";
  • as will be discussed below, the term "document" is defined broadly and extends to any record of information; and
  • a document must be disclosed regardless of whether it is potentially damaging to your case.

Discovery in the Federal Court is slightly different. The discovery obligation does not arise automatically after the pleadings are closed, but arises only if the Court makes an order for discovery. Such an application should only be made where it will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

The Federal Court Rules 2011 (Cth) contemplate two types of discovery: standard discovery and non-standard discovery. Standard discovery is similar to disclosure in the Queensland system and means a party must give discovery of documents:

  • that are directly relevant to issues raised by the pleadings or affidavits;
  • of which, after a reasonable search, the party is aware; and
  • that are, or have been, in the party's control.

Non-standard discovery is moulded to the particular circumstances and, for example, may involve discovery of certain categories of documents. [2]  For document extraction, it is important to understand what amounts to a "reasonable search" and we will examine this in Part 2.

Documents to be disclosed - but what is a document?

Only documents need to be disclosed, so it is important to understand what falls within the meaning of "document". Generally speaking, any record of information is a "document" for the purpose of disclosure. This includes:

  • any part of a document;
  • books, maps, plans and drawings;
  • photographs;
  • labels;
  • audio and video records; and
  • electronic documents [3]

Where do you start looking for documents?

Once you have considered the types of documents that are likely to be relevant, you should consider where these documents may be found. Your duty of disclosure means you must actively search for relevant documents. To do so, you should identify all possible sources of relevant documents, including:

  • within your organisation. For example, you should consider the personnel who were involved in the dispute and how documents are stored (in hard copy and electronically); and
  • with third parties (where you have a right to obtain the documents).

Identifying personnel  

Identifying which personnel (whether directors, employees, contractors or otherwise) are likely to hold relevant documents is important. While often a matter may concern a particular business unit, you should also consider whether personnel in other parts of the organisation may have been involved. If this is unclear, one option is to review a sample of emails sent from personnel you know were involved in a matter to identify which other personnel they dealt with or, where applicable, examine records such as bills and timesheets.

The identified personnel may provide you with documents or guide what further searches you should make by giving you an indication where relevant documents may be located.

Hard copy and electronic documents

Identifying the sources of relevant documents also involves considering the way in which documents are stored. The following are some issues to consider:

  • where personnel store and archive their records. Your organisation's document retention policy may assist in this respect. If possible, it may be prudent to run keyword searches over your organisation's internal document management system to locate documents;
  • how your organisation backs up data. For example, some organisations retain records of all external emails and maintain back-up tapes. As we'll see in Part 2, a search of the back-up data may not be warranted, depending on the circumstances; and
  • other means of storing documents, such as cloud storage, USBs, hard drives, laptops or local drives.

The above process will be influenced by the type of documents that you expect will be relevant and your organisation's electronic communication systems. In many cases, email will be the source where most of the discoverable documents are found.

You should also consider whether instant messages, wikis, blogs, intranet pages and digital voice messages may hold discoverable material and where such documents may be stored. For example, records of instant messenger conversations may be stored in a different location from emails and may not be filed on the internal document management system as a matter of course, in contrast to other documents such as emails.

Where possible, originals of documents should be made available to your external lawyers for review. Providing hard copy original documents as opposed to cherry-picked copies is important as originals contain information (for example, highlighting) as well as context that may be lost from a copy. Similarly, the original of an electronic document contains metadata (such as the author of the document and the date modified) that may be lost when the document is printed or saved as a new file.