An A to Z of multi-track disclosure Image

An A to Z of multi-track disclosure

Posted: 15/04/2016

Access to documents - where and in what form are the relevant documents stored and located? How easy will it be to access them? 

Back up policies - what is the company policy on back-ups for disaster recovery purposes? Daily, weekly, monthly? How and where are the back-ups stored? 

Case management conference - you must have all your disclosure ducks in a row well in advance of the CMC, to enable the court to make effective and realistic directions. 

Disclosure statement - who should sign this important statement? It should be the party wherever possible, or potentially the legal representative where disclosure has become a massive or particularly complicated business. 

Electronic disclosure - does your case lend itself to the electronic disclosure regime? A separate A to Z may be required for that one! 

Fixed fee - if you are outsourcing the electronic aspects of disclosure, consider asking your provider for a fixed fee. 

Get talking - parties should discuss and seek to agree a proposal for disclosure which meets the overriding objective, not less than seven days before the first CMC. 

Honest belief - the signatory to the disclosure statement must have an honest belief that the statement is true, and understand that making (or causing to be made) a false disclosure statement may result in proceedings for contempt of court. 

Inspection - disclosure is formally stating that a document exists or has existed; inspection is getting sight of those documents. 

J-code for disclosure - JF00 – should you ever need reminding! 

Keyword searches - these can be used to filter out most irrelevant material from electronic documents – but you will need to choose the keywords carefully, and agree them with the other side if possible (and certainly before starting work). 

List of documents - you will usually be required to file and serve a list of documents on the other side (form N265). Exchange of lists is the norm – but is there any reason to serve the lists sequentially? 

Menu of options - standard disclosure need not rule the day – what about issue based disclosure? Reliance based disclosure? No disclosure at all? 

Not over yet - the parties have an ongoing duty to make disclosure of documents covered by the disclosure order made by the court. Disclosure does not end with the exchange of that initial list. 

Overriding objective - still lurking in the background – disclosure should be limited to that which is necessary to deal with the case justly. 

Part 31 - read, learn and inwardly digest the rules and practice directions that govern the disclosure process in the UK courts. 

Quiet! Be careful with your witness statements – once you have referred to a document you may be deemed to have disclosed it. 

Reports - disclosure reports must be filed 14 days in advance of the first CMC for multi-track cases. 

Specific disclosure - is there something lacking from the other side’s disclosure list? A focused application to court for specific and clearly identified (classes of) documents may reap dividends. 

Timing of disclosure - usually, disclosure is made after statements of case have been served. However, it can be worth making a pre-action disclosure application before proceedings have been issued. 

Understanding “documents” - “document” means anything in which information of any description is recorded. This includes existing and deleted electronic materials, as well as their metadata. 

Volume of documentation - our digital world means that there are often thousands or potentially millions of documents to be reviewed. You need to know what you are dealing with to agree realistic and proportionate directions. 

Withholding inspection - would it be disproportionate to allow inspection of certain (classes) of document? Does privilege apply? Are some documents no longer within your control? 

eXchange of copies - inspection is conventionally achieved by exchanging copies of the disclosable documents. Are there any originals you would like to see? 

whY not… try the Shorter and Flexible Trials Pilot Schemes, which are currently running in the Chancery Division, the Commercial Court, the London Mercantile Court and the TCC? Rumour has it their approach to disclosure might make a refreshing change. 

Zzzzzz… pity the poor lawyers tasked with the review process. We’ve all been there! 

This article was published in New Law Journal in April 2016.

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