Disclosure is an integral and essential part of the litigation process. When signing off on the litigation disclosure statement, confirmation has to be given by an appropriate person as to the extent of the search undertaken, that the duty to disclose required documents is understood and that the duty has been complied with to the best of his/her knowledge.
Consider the following steps to ensure that disclosure is dealt with adequately and that the disclosure statement can be signed off with confidence.
Stop document destruction (including electronic documents) as soon as litigation becomes a possibility. It will be cheaper in the long run than having to retrieve 'deleted' documents. Inform all employees who are likely to hold relevant data of the duty to cease destruction and continue to remind employees of this duty at regular intervals.
Keep in mind that 'documents' means anything on which information of any description is recorded. It includes paper records, tape recordings, computer databases, disks and microfilms, emails and other electronic communications, word-processed documents and databases. Documents stored on servers and back-up systems as well as electronic documents that have been 'deleted' are included as is the metadata of a document.
Meet your internal IT manager to understand what electronic documents you might have available, in what form and the methods/tools available to retrieve electronically stored information. Sources of electronically stored information include local hard drives, mobile phones, blackberries and even iPods!
Do not interfere with the technical process of retrieving documents if you are not an expert.
Keep a note of the searches carried out for documents (electronic or otherwise) so you have an audit trail of what steps have been taken.
Identify the key players in the dispute at the outset, including those who might have left your employment, and identify the electronic devices they use (or used) and that will need to be searched against.
Remember, the search only has to be reasonable for the duty of standard disclosure to be complied with. If the ease and expense of retrieving documents is disproportionate to the nature and complexity of the proceedings, the amount involved or the likely significance of any documents to be located, then, so long as this is stated in the disclosure statement, there is no duty to undertake the search, unless the court subsequently orders otherwise.
Be aware that the duty to disclose relevant documents is a continuing one and that any documents (electronic or otherwise) that come to light after disclosure has taken place also need to be disclosed.
Take care when conducting your search for documents. If a party fails to disclose or give inspection of a document, it is not able to rely on that document in the proceedings unless the court gives permission.
Remember that a party to whom a document has been disclosed in the proceedings may only use it for the purpose of the proceedings in which it is disclosed unless certain exceptions apply.
Take the task of signing the disclosure statement seriously. Making an untrue disclosure statement is a contempt of court so the obligation on litigants to address disclosure is a serious one. As the person responsible for signing the disclosure statement is unlikely to be the person who has searched for the documents (electronic or otherwise) there needs to be a clear line of communication between those responsible for managing the litigation process and those responsible for searching for documents to enable the statement to be made with an honest belief.