Disclosure involves you disclosing to the other side the existence of relevant documents in your control, in accordance with a court order.
The court order will usually be to disclose (1) documents upon which you rely; (2) documents which adversely affect your case; (3) documents which adversely affect another party's case; and (4) documents which support another party's case.
You are required to make a reasonable search for documents. What is reasonable depends on the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval and significance of documents likely to be found. The relative financial positions of the parties will also be taken into account.
"Documents" includes electronic documents and data. Electronic documents include documents accessed on all forms of electronic media, including desktop and laptop computers, personal mobile devices (such as Blackberry, iPhone and tablets) and external storage devices (such as memory sticks and USB drives). Also included in the definition of "documents" are documents stored on servers and back-up systems and metadata.
Documents are in your control if they are in your or your agent's physical possession, whether or not you actually own the documents, and if you have a right to documents or to inspect or copy them, even if they are not currently in your possession.
You also have to disclose (that is, list) documents which used to be in your control.
As soon as litigation is reasonably in prospect, you must stop the routine destruction of documents that might be relevant. Documents damaging to your case must not be destroyed under any circumstances.
It is important to ensure that electronic documents' metadata is preserved and not altered in any way.
You should ensure that all those within the organisation who may have disclosable documents are warned about their disclosure obligations as soon as possible.
Relevant documents should be sought out at the earliest opportunity. The search should extend to:
- assessing the likelihood of documents being found in all your locations
- documents in storage
- copies of significant documents which may have manuscript notes on them
- notes made by all those who attended significant meetings
- electronic data, including active data on computer hard drives, computer tapes, computer disks, e-mails and voicemail recordings, laptops, mobile devices (such as Blackberry, iPhone and tablets) and external storage devices (such as memory sticks and USB drives), mail files (including Calendar, Journal and To Do lists or their equivalent), web-based applications, spreadsheet files and graphic and presentation files
- back-up data or metadata (in some cases)
- diaries, if these are likely to be important to any of the issues
- photographs, plans, drawings, video and sound recordings, microfilms.
Lawyers should be involved in the search for documents from an early stage.
Original files should not be disturbed or re-arranged. All disclosable documents have to be described in a formal List of Documents to be supplied to the other party and which must include a disclosure statement signed by the party making disclosure or an appropriate person from within the organisation.
The disclosure statement must identify the extent of the search for documents and certify that the maker of the statement understands the duty of disclosure and, to the best of his knowledge, has carried out that duty.
The other side will in due course be entitled to inspect and take copies of (usually) all your listed documents except privileged documents.
Privileged documents are essentially those documents that come into existence for the dominant purpose of giving or obtaining legal advice, such as:
- correspondence between lawyers and their clients
- correspondence between lawyers/parties and third parties in connection with litigation or other adversarial legal proceedings.
Not all of the employees of a client organisation will be classified as "the client" for the purpose of claiming legal advice privilege. The identity of those employees who constitute "the client" must be considered for each specific matter.
The following are unlikely to be privileged:
- internal memoranda, even if confidential
- board minutes
- notes to accounts
- correspondence with other professional advisers (such as accountants and, often, insurers) or the police or other authorities
- documents obtained from third parties to provide evidence for your case
- documents recording factual information, even if generated for the purpose of obtaining legal advice (unless litigation is reasonably in prospect)
- instructions to and correspondence and discussions with expert witnesses.
Care should therefore be taken to ensure that if such documents are created or obtained after proceedings are contemplated or commenced, they contain nothing that will prejudice your case.
In order that privilege is maintained, as far as possible requests for documents or other assistance from third persons should only be made after consultation with and, ideally, by your lawyer.
Privilege can be lost if you show your documents to third parties.
"Without prejudice" correspondence is correspondence arising in connection with settlement negotiations: such correspondence cannot be produced to the court before judgment but is not usually privileged.
Documents and information derived from documents obtained on disclosure or as a result of any other court order must not be used for any purpose other than the litigation in question. All members of staff to whom such material may be communicated must be warned against misuse. Misuse could amount to contempt of court.
Failure to give proper disclosure can also amount to contempt of court and may have serious consequences, including dismissal of your claim or entry of judgment against you.