Background

As allegations about hygiene failings in the poultry industry emerge, food retailers and suppliers will be concerned about product recall and liability, reputational damage and financial implications in the wake of the widespread media coverage.

A point often missed is how a company should review and control the wealth of information which is being produced whilst they carry out tests and investigations internally and externally with suppliers/retailers and deal with potential third party claims.  A little bit of time spent now on considering policies and procedures to deal with these tests, investigations and claims can reap rewards in the event that your company is found to be at risk and means that you will be able to focus your energies on the solution, rather than the problem.

It is essential that you make good use of your legal advisors, either in house or external, and keep them involved throughout the process. If you are unsure about any of the issues in this note, including how to instruct the third party carrying out tests, whether a document should be created, how data should be stored and how to respond to a potential claim, be sure to raise these questions with your legal team as doing so can have a significant impact on your future position.

Duty of Disclosure

In litigation, parties are required to list and make available, to the Court and to the other side, all documents even those that harm their case. The duty of disclosure is strict and the Courts take it very seriously.

“Document” has a very wide meaning under the Court rules. It includes all media in which information of any description is recorded. This includes (but is not limited to):

  • Tapes
  • Computer records
  • Emails
  • Paper documents
  • Electronic material (documents stored on servers/back-up systems/metadata).

A party is required to conduct a reasonable search for documents which are or have been in its control. You are therefore potentially creating, even unintentionally, a wide range of data which will ultimately be disclosable.

Withholding documents

Although the existence of all relevant documents must be disclosed, some documents can be withheld from inspection. The main categories of document which are protected (or privileged) from inspection from the other side are those which are afforded:

  1. Legal advice privilege: communications passing between a party and its legal advisors in which the party is seeking or obtaining legal advice. This privilege extends to all members of the legal profession, including in-house lawyers. However, in-house lawyers with management, compliance or administrative roles need to be careful as no privilege attaches to communications relating to these roles. Care needs to be taken not to include information relating to these roles in communications relating to their legal function, as confusion could lead to privilege being lost over the document as a whole.
  2. Litigation privilege: certain communications made when litigation is likely or has begun passing between a party and its legal advisors, a party and third parties (e.g. potential witnesses) and, in certain circumstances, a party and third parties, where the main purpose of the communication is to seek or obtain evidence for use in the litigation, or to provide advice on the litigation.
  3. Without prejudice privilege: correspondence and other communications generated as part of a genuine attempt to settle an existing dispute.

What can you do?

At the outset, consider setting up a small group who will be responsible for steering the investigation and aim to keep all communications contained within this group. In order to protect you further we recommend the following do’s and don’ts:

Do:

  1. Retain and preserve any existing documents. This is vital. Take steps to suspend any routine document destruction policies which you have in place.
  2. Obtain legal advice before requesting any information from third parties or providing third parties with information. Liaise closely with your in house and external legal advisors in relation to all areas which you are investigating, even if you believe that you may escape the scandal. In particular, speak with your legal advisers before engaging in social media.
  3. Refrain from creating any new documents until you have considered the purpose and circulation of that document. In particular, refrain from discussing any risk/litigation internally between or involving those who are not witnesses or who are not involved in the conduct of the dispute. Also, refrain from circulating multiple documents or involving numerous people in discussions in order to ensure that the process is tightly controlled.

Don’t:

  1. Annotate or amend existing documents before considering if/why those amendments are necessary. Documents containing any relevant annotations will need to be disclosed and informal annotations in particular are often prejudicial to a party’s case.
  2. Speculate about incidents, causes or results. Speculation, however informal and whether in draft or final form, is particularly unhelpful.
  3. Create any document you would not want to be seen by a third party at some future date, unless this document is created specifically for the purpose of obtaining legal advice or assisting in the conduct of litigation. Consider the purpose of creating or commissioning reports, internal audits or testing. The commissioning of such reports could be disclosable and you should therefore consider commissioning such a report through your legal advisors so that you will benefit from privilege. Where documents are created for this purpose, they should be appropriately marked and make clear that they are “Legally Privileged”.

Remember

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Information:

Information from the FSA is developing rapidly, on a daily basis. We recommend all food businesses keep up to speed with the latest developments, by following this link: http://www.food.gov.uk/news-updates/campaigns/campylobacter/.