"Disclosure" is the term given to the stage of the litigation procedure when each party may be required to collect and review potentially relevant documents and then state to the other parties (usually in a formal List) the disclosable documents which exist or have existed. The other party has a right to a copy of those disclosed documents, subject to certain exceptions. This process is known as "inspection". In cases where large numbers of documents are involved, disclosure may be a lengthy exercise involving a significant amount of management time. The cost of that time will not normally be recoverable from the other party. It is nonetheless essential that it is carried out conscientiously, since it can determine the success or failure of a party's case. Also, the parties' solicitors are under a duty to the court to ensure that it is done properly and the consequences of failure are potentially severe.
It is frequently only when disclosure has taken place that lawyers are in a position firmly to predict the likely result of the litigation, although it is possible to obtain pre-action disclosure in some cases (see below). The prospect of disclosure may compel a party to explore an early settlement before its opponent sees its documents, and in many cases settlement follows shortly after disclosure has taken place.
Purpose of this note
The purpose of this note is to explain in practical terms what disclosure entails and the problems most often encountered. One of the major challenges of disclosure is managing the increasing volume and variety of electronic documents which are potentially disclosable. This can be achieved by carefully considering what a party's legal obligations require in practice, forward planning of the process and appropriate and cost effective use of technology. Guidance is also given on ensuring that, once litigation is envisaged, the number of disclosable documents created thereafter is kept to a minimum and, so far as possible, steps are taken to ensure that documents are protected by "privilege" and therefore need not be shown to the other party (see below).
The rules of disclosure in "multi-track" proceedings (most claims over £25,000) are contained mainly in Part 31 of the Civil Procedure Rules (CPR) and in the Practice Directions on disclosure. Different rules apply to cases running under the pilots for the Shorter or Flexible Trial Schemes. This note summarises the points of main interest to clients.
The court determines the appropriate basis for the disclosure of documents. Usually it will order disclosure on the "standard basis", or "standard disclosure". This requires disclosure of documents relevant to the dispute which are, or have been, in a party's control (see below) and which it relies upon or which adversely affect its own case, or which support or adversely affect another party's case. The test excludes background documents and documents which may indirectly advance or damage a party's case. Standard disclosure requires a party to undertake a reasonable search for documents (see below). A party cannot pick and choose which documents to disclose based on its own priorities.
"Standard disclosure", whilst the most common type of disclosure, is not the court's only option. The court can choose from a "menu" of disclosure options set out in the CPR. This includes standard disclosure, but also gives these five other options:
- an order dispensing with disclosure;
- an order that a party disclose the documents on which it relies, and at the same time request any specific disclosure it requires from any other party;
- an order that directs, where practicable, the disclosure to be given by each party on an issue by issue basis;
- an order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences; or
- any other order in relation to disclosure that the court considers appropriate.
The judge will decide what order for disclosure to make, usually at the first case management conference ("CMC") bearing in mind the overriding objective of the CPR and the need to limit disclosure to that necessary to deal with the case justly.
The judge will be guided by the parties, who must, before the CMC, have identified to each other in a "disclosure report" what documents exist, or may exist, which are, or may be, relevant to the matters in issue in the case. The reports will describe where those documents (including electronic documents) are, or may be, located. The parties will also have to include in their reports estimates of the broad range of costs that could be involved if they were to give standard disclosure, including – very importantly, given that this is often the most expensive aspect of the disclosure exercise – the costs of searching for and disclosing electronically stored documents.
In their disclosure reports, the parties must indicate which type of disclosure from the menu of disclosure options would be most appropriate. Having each considered the other parties' disclosure reports, the parties must liaise to try and agree an appropriate, cost- effective, proposal for carrying out the disclosure exercise. At the CMC, the court can accept this or impose what it considers to be a more proportionate way of giving disclosure.
The court can also give directions about how disclosure should be given (including varying the standard disclosure procedure set out in the CPR, which this note considers below), for example, what searches should be undertaken and in what format the documents must be disclosed.
In the context of disclosure, "documents" means anything in which information of any description is recorded. In addition to writings on paper, the term includes electronic documents, photographs, plans, drawings, and video and sound recordings. A computer's hard drive is itself a "document", which could contain many other different electronic documents including e-mails, voicemail recordings, chat room and social media messages. The definition of "documents" also covers documents stored on servers and back-up systems, electronic documents that have been deleted and "metadata", ie information stored with and about electronic documents, such as data showing by whom the document was created, when it was modified and by whom. Electronic documents include documents accessed on all forms of electronic media, including desktop and laptop computers, personal mobile devices (such as smart phones and tablets) and external storage devices (such as USB memory sticks and external hard drives). In addition to word- processed documents, the definition of documents covers mail files (including Calendar, Journal and To-Do lists or their equivalent), web-based applications, spreadsheet files and graphic and presentation files.
Subject to the type of disclosure ordered, a party must disclose documents that are or have been in its "control". This means that documents must be disclosed if a party has physical possession of them (whether or not it has a right to possess them), if it could obtain them by enforcing some right to possession or if it has a right to inspect or take copies. Thus, the documents of a party's agent (such as an insurance broker) which the agent can be compelled to release must be disclosed.
Documents of an associated company may not have to be disclosed unless there exists a right to inspect – this should be checked with a lawyer before such documents are collected.
The disclosure obligation extends to the disclosure of documents which are no longer in a party's control. If, therefore, relevant documents have been lost or disposed of in the course of routine destruction of files prior to litigation, those documents must be described in the "List of Documents" (see below) and an explanation given of the circumstances in which they were lost or disposed of.
Preservation of documents
It is important to preserve intact all relevant documents from the time litigation is contemplated, rather than the time when proceedings are commenced. If a party has a routine procedure for destruction of documents, such as the deletion of computer back-up media, this should be halted until the documents they contain have been considered by lawyers and confirmed not to be potentially disclosable. Documents of possible relevance to a pending action (including manuscript notes on documents) must not be destroyed. It is important to ensure that all persons within an organisation who have a responsibility for records management or document retention policies are aware of this. It may also be necessary to inform all personnel who may hold or subsequently create relevant documents of this obligation. Your lawyers can advise you on drafting and issuing such instructions. It is also important to ensure that electronic documents' metadata is preserved and is not altered in any way. Metadata is easily changed. Although most metadata (beyond basic information about the document including the date of its creation) is unlikely to be required, in some cases merely accessing the documents by opening or copying them can irreversibly change the metadata that is (or may later be) required. This may delay the disclosure process and result in additional costs. The safest way to deal with relevant documents should be discussed immediately on instructing lawyers. Deliberate destruction of relevant documents is likely to be a contempt of court and may constitute the offence of attempting to pervert the course of justice.
The importance of preserving intact all relevant documents is reinforced by s 450 Companies Act 1985. This provides that an officer of a company can incur criminal penalties for destroying, falsifying or disposing of company documents, or being privy to such action, unless they can prove that they had no intention of concealing the state of the company's affairs or of defeating the law. Criminal proceedings under s 450 would normally be brought in the context of investigations by the Department for Business, Energy and Industrial Strategy ("BEIS", formerly BIS) into a company's affairs, and more specifically as a result of the exercise by BEIS of its powers to inspect company documents.
Duty to search for documents
Where the court orders standard disclosure, there is a positive duty to make a reasonable search for all documents required to be disclosed. The search for electronic documents should encompass readily accessible data on desktop and laptop computers, document management and e-mail systems, personal mobile devices (such as smart phones and tablets) and external storage devices (such as USB memory sticks and external hard drives). The types of files which should be searched include mail files (including Calendar, Journal and "To- Do" lists or their equivalent), document files, web-based applications, spreadsheet files and graphic and presentation files. In most cases, more extensive searches, for example for back-up data or additional metadata, should not be necessary. However, if the authenticity or manipulation of documents may be an issue, such as in a case where there are allegations of fraud, additional metadata is more likely to be relevant and therefore disclosable.
Parties should try to agree issues regarding searches for and preservation of electronic documents at an early stage in the proceedings. To this end, they may be required to share information about their IT infrastructure, including data storage systems and their document retention policies. For information about obtaining advice on technical issues relating to electronic disclosure, please contact the partner with whom you normally deal.
Care should be taken to ensure that all documents of possible relevance to the proceedings are identified, located and preserved at the earliest opportunity. A party's credibility may be seriously weakened if it transpires that it has destroyed or failed to disclose a relevant document, whether or not its omission was deliberate. The court may draw adverse inferences against the party and may penalise that party on costs. If a fair trial is no longer possible, the case may be dismissed or judgment entered against the party. Subject to the question of privilege (see below), documents damaging to a party's case should not be withheld under any circumstances.
The factors by which the reasonableness of the search for documents, including electronic documents, is to be judged include the number of documents involved, the nature and complexity of the proceedings, the significance of any document which is likely to be located during the search and the ease and expense of retrieval of any particular document. The court will also take into account the financial position of each party and its aim of ensuring that the parties are on an equal footing.
The CPR Part 31 Practice Directions on disclosure provide guidance on factors to be taken into account when considering the ease and expense of retrieving particular electronic documents. These include the accessibility of electronic documents or data; the location of relevant documents, data, computer systems, servers and the like; the likelihood of locating relevant data; the cost of recovering any electronic documents; the cost of disclosing and providing inspection of any relevant electronic documents; and the likelihood that electronic documents will be materially altered in the course of recovery, disclosure or inspection.
The following are pointers towards ensuring that a reasonable search is undertaken:
- if a company operates from more than one place, each location should be identified and the likelihood of relevant documents being found there assessed;
- if relevant files have been put into storage, these should be retrieved;
- if in addition to, or instead of, a central filing system, staff or management keep files of their own, those people should be asked to make their files available;
- where a significant document is recorded as having been distributed to a number of people within the organisation, all the copies should be located. Manuscript notes on copies are frequently important;
- where significant meetings have taken place, several people may have made their own notes of the meeting and these notes should be located;
- diaries kept by staff or management should be located if likely to be relevant to any of the issues;
- the company's various sources of electronic documents (for example, desktop and laptop computers, mobile phones, tablets, USB sticks, document management systems, databases, web-based applications and the like) should be identified, as well as the types of file which may hold relevant information (for example, word-processed documents, mail files (including Calendar, Journal and To-Do lists or their equivalent), spreadsheet files and presentation files); and
- certain functions may be outsourced to a third party provider, such as document hosting, IT or finance, and this may need to be taken into consideration when searching for documents.
It is advisable for the lawyer who is to be responsible for a party's disclosure of documents to arrange a client meeting to discuss disclosure as soon as litigation appears likely. This enables a full appraisal of the likely scale of the disclosure exercise to take place. It also affords the lawyer an opportunity to discuss with relevant personnel the client's paper and electronic filing systems, other relevant IT infrastructure and document retention policies and to discuss the extent to which the client will have to search for documents. In this way, the risk of disclosable documents emerging at some later stage is reduced. The lawyer can also advise whether any documents of an associated company must be disclosed.
In relation to hard copy documents, it often assists in attributing undated or unsigned documents such as manuscript notes if it is known where in the file the document in question was located. Files should therefore not be rearranged unless careful notes are kept to show which documents have been removed or Disclosure statement
At the time disclosure is given, a statement must be made by the party or, where the party is a company, firm, association or other organisation, by an appropriate person holding an office or position in the party, setting out the extent of the search that has been made, certifying that (i) the maker of the statement understands the duty to disclose documents and (ii) to the best of their knowledge they have carried out that duty. The wording of the disclosure statement also requires the maker of the statement to make clear the extent to which, in conducting a reasonable and proportionate search, a search has or has not been carried out to locate electronically held documents. This extends to specifying those types of hardware and files which have not been searched, as well as making it clear if the search for documents was limited to particular keywords or concepts or a particular date range.
It is important to identify at an early stage the appropriate person to make the disclosure statement so that person can participate in the decisions on the extent of the search for documents and provide background factual information needed for the document review exercise. The person may be an in-house lawyer responsible for the litigation or, more likely, the member of management with conduct of the proceedings. Identification of this person is another matter on which lawyers can advise.
A person making a false disclosure statement without an honest belief in its truth faces the prospect of contempt of court proceedings.
Therefore, it is important that the duty of disclosure is fully understood and complied with.
List of Documents
Unless the court orders otherwise, a party's disclosable documents must be set out and identified in a List of Documents. The List is in a prescribed form and will include the disclosure statement. The parties usually exchange Lists after they have exchanged statements of case (pleadings). Often, only a relatively short time is allowed for exchange of Lists and the parties will therefore need to begin the process of collecting documents at an early stage. It will be too late in most cases to wait until the defence has been served.
The List will give each document a reference number, will specify its date and will give a concise description (for example, "14. Letter – Smith to Jones – 1.12.15"). This information is often taken directly from the document's metadata. Documents will normally be listed in date order.
In many circumstances and in particular in larger litigation, the use of technology in the electronic disclosure process, which can take many forms, can result in huge savings in time and therefore cost. Lists are usually agreed or ordered by the court to be exchanged electronically. The parties should discuss and agree at an early stage the format in which Lists and electronic documents provided on inspection (see below) will be exchanged.
For further information about litigation support technology generally, please contact the partner with whom you normally deal.
In certain circumstances, a party may apply, before commencing proceedings, for an order for disclosure of specified documents or classes of documents from its proposed opponent. To obtain such an order it will have to show both that the documents would be covered by the opponent's standard disclosure obligations if proceedings had started and that pre-action disclosure "is desirable in order to:
- dispose fairly of the anticipated proceedings;
- assist the dispute to be resolved without proceedings; or
- save costs".
The court will insist that these conditions are met, to avoid the danger of prospective claimants being allowed to carry out "fishing expeditions" for useful documents. However, the courts do not look favourably on parties who unreasonably refuse to provide pre-action disclosure voluntarily, and have sometimes imposed costs penalties on them. (This may not apply to parties such as banks who require a court order because of their client dentiality obligations.)
Apart from the pre-action disclosure regime, note that there is an obligation on parties, in any event, to act reasonably in exchanging information and documents relevant to a claim and generally in trying to avoid the need for proceedings.
Documents whose existence is disclosed in the List will be subject to inspection by the other parties except where they are no longer in the control of the party who disclosed them or where that party has a right or duty to withhold inspection (for example, because a document is privileged) or where the disclosing party considers it would be disproportionate to permit inspection. In exceptional circumstances, where documents contain highly confidential material, such as technical secrets, inspection may be restricted to a party's legal advisers or an independent expert. A party may challenge the withholding of documents from inspection by application to the court.
Inspection normally takes place following the exchange of Lists. Each party is entitled to inspect and ask for copies of the originals of the other party's documents (under the procedure set out in the CPR).
However, in practice, in larger litigation, all of the documents listed in the List of Documents that the other party is entitled to inspect are usually exchanged electronically. It can be very time consuming, depending on the volume of documents disclosed and the complexity of the document review, to prepare electronic documents for inspection, including applying any necessary redactions or electronic "blanking out" of privileged or irrelevant yet confidential information. Therefore, it is important that there is an appropriate gap between exchange of Lists and inspection.
Certain documents, although otherwise disclosable, may be kept from the other party on the ground of privilege. They will be referred to in the second part of the List. Whether or not a document is privileged can be a matter of contention between the parties. It is often necessary for lawyers to give careful consideration to whether particular documents are privileged. For present purposes, it is sufficient to say that there are two broad categories of legal professional privilege: legal advice privilege and litigation privilege.
Legal advice privilege
The main example of documents which are subject to legal advice privilege is correspondence and other written communications between a client and its lawyers, whether or not connected with litigation/adversarial proceedings, which are confidential and written for the purpose of giving or receiving legal advice. This includes correspondence with in-house lawyers, unless it relates to administrative matters or their executive or business function rather than legal advice. Note that it does not apply to advice given by in-house lawyers in EU competition investigations.
The House of Lords (the predecessor to the Supreme Court) has made clear that, in this context, legal advice includes not only advice on legal rights and obligations under both private and public law, but also advice as to what prudently and sensibly should be done in the relevant legal context and also factual exchanges for the purposes of facilitating either. The relevant legal context includes:
- the giving of advice in relation to the law;
- the giving of advice in relation to an investigation or to an inquiry which might become the subject of a judicial review; and
- the giving of advice in relation to something which could impact on public or private rights and obligations or which could give rise to criticism of the client or affect the client's reputation.
Documents which will usually be covered by legal advice privilege will include:
- presentational advice;
- draft submissions and statements of case (litigation privilege is also likely to apply to these); and
- documents which reflect the use of legal skills in implementing legal advice as now broadly defined.
Communications which are subject to legal advice privilege are privileged whether or not litigation/adversarial proceedings were contemplated or pending at the time they were generated. As mentioned above, legal advice privilege only attaches to communications between a client and its lawyers. For these purposes, only those employees of an organisation expressly or impliedly tasked with obtaining or receiving legal advice can properly be classified as "the client". In other words, it cannot be assumed that all of the employees within a client organisation can be classified as "the client".
Accordingly, communications between an organisation's lawyers and its "non-client" employees will not attract legal advice privilege. This is the case even where the communications by the employees are authorised by the organisation for the purpose of the organisation seeking legal advice (eg by providing information for that purpose), if those employees are not themselves authorised to seek or receive legal advice. It is important that clients consider carefully with their lawyers which employees will constitute "the client" at the outset of a matter and as the matter progresses and take care that privileged communications do not cease to be privileged as a result of their being copied to others within the organisation who are not "the client".
Note that documents generated by "non-client" employees will not be privileged, even if created for the purpose of seeking legal advice (such as to provide information to or for the purpose of putting before a lawyer) and even if sent to lawyers directly or through "client" employees, unless litigation is contemplated at the time they are created. As recent case law has highlighted, this is of particular concern in the context of investigations (where litigation privilege may not apply – see below) because records of interviews of and other fact finding from non-client employees are unlikely to be protected by legal advice privilege. On the other hand, a party's lawyer's file notes (but not a lawyer's verbatim note of a non-privileged communication), drafts, instructions and briefs to counsel and counsel's opinions and notes will be privileged where they were generated for the purpose of giving or receiving legal advice, or the dominant purpose of litigation or adversarial proceedings.
This form of privilege, called litigation privilege, covers not only litigation, but also other proceedings that are, or have become, sufficiently adversarial in nature.
Litigation privilege protects correspondence and other written communications between a party and its lawyers or between either of them and a third party (including a "non-client" employee), where the confidential communication was made for the dominant purpose of litigation or adversarial proceedings which are on foot or reasonably in prospect. For these purposes, there must have been a "real likelihood" of litigation/adversarial proceedings at the time the communication was made.
Investigations by regulators may not be sufficiently adversarial in nature, and so litigation privilege may not apply to documents created in connection with them. It may be difficult to pinpoint exactly when (and if) a regulatory investigation becomes sufficiently adversarial, and there is still little case law on the topic. A 2015 case implied that this point might be met as soon as the regulator's fact finding begins, but did not provide direct judicial authority on the issue. A more recent case appeared to contradict that position, with the court concluding on the facts of that case that a criminal investigation was not sufficiently adversarial to give rise to litigation privilege.
The court's reasoning was that the criminal investigation was a preliminary step taken, and generally completed, before any decision to prosecute had been taken. It is not clear how far the judge's conclusions should be read across to other investigations by regulators. The position may well depend on the particular powers which the regulator is exercising and the test for when those powers can be used. At the time of writing the case is subject to appeal.
Documents which may be subject to litigation privilege (depending on the circumstances of the case) include:
- notes of meetings or telephone conversations between the client or its lawyer and the client's employees created for the dominant purpose of gathering information in connection with the litigation or adversarial proceedings; and
- experts' reports and witness statements prepared for the dominant purpose of the litigation or adversarial proceedings (unless and until disclosed to the other side).
The following documents will not be privileged:
- notes regarding the litigation
prepared by the party for internal purposes, unless for the
- reporting when strictly necessary to others within the party's organisation on advice received from lawyers; or
- seeking information requested by lawyers for the purposes of the litigation;
- board minutes recording discussion of the proceedings (unless for the purposes described above);
- notes to the published accounts concerning the litigation and any provision for the proceedings in the accounts (whether or not privilege ever existed, it will have been waived by inclusion in the published accounts) and related correspondence with accountants;
- written communications between a party and outsiders (such as the police and other authorities, insurers and professional advisers other than the party's own lawyers), or written notes recording such communications, unless such documents came into existence for the dominant purpose of existing or contemplated litigation or adversarial proceedings; or
- instructions to and correspondence and discussions with expert witnesses in certain circumstances.
Sometimes a party may claim privilege for part only of a document or only part of the document may be relevant. In such a case, the privileged or irrelevant part of the document may usually be redacted or "blanked out" for inspection.
Privilege: Some general rules
Some general rules emerge from the above examples:
- internal notes and memoranda are not privileged just because they are internal;
- documents are not privileged just because they contain confidential information;
- marking documents as "privileged" or "confidential" may be useful for other purposes (see below), but it does not determine whether in fact those documents are privileged;
- it should not be assumed that, once litigation or adversarial proceedings are begun, all documents that then come into existence are privileged. Great restraint should be exercised in creating documents relating to the proceedings once the matter has become (or looks likely to become) adversarial. Wherever possible, communications with outsiders should be made orally or through lawyers. Where such documents have to be created, this should be either for the purpose of essential internal reporting on advice received from lawyers or for the purpose of assisting the lawyers to conduct the litigation or adversarial proceedings (for example, passing on requests for information). It may then be helpful to mark such documents "privileged" so as to keep them distinct and thus reduce the risk of their being disclosed by accident;
- great restraint should be exercised in obtaining documents or copies from third parties for use in the litigation. They may not be privileged. Collecting such documents should ordinarily be left to lawyers;
- it is possible to waive privilege in a document unintentionally by disclosing it (or part of it) to third parties (which may include "non-client" employees within the client organisation);
- care should be taken in communications with expert witnesses and should, where possible, be through a lawyer; and
it should not be assumed that investigations by regulators and authorities are adversarial from the outset (or indeed, at all) and hence documents created in dealing with such investigations may not be privileged. Advice should be sought from lawyers on when (and if) litigation privilege applies.
"Without prejudice" documents
Documentation, particularly correspondence, which arises in connection with settlement negotiations, should normally be marked "without prejudice". This means that it cannot be produced to the court by either side before judgment (unless settlement is reached). It is not, however, privileged for the purposes of disclosure, save in exceptional circumstances The presence or absence of a "without prejudice" marking on a document does not determine its status: that depends on whether it is genuinely part of settlement negotiations.
Ideally a party should not enter into any such negotiations without first consulting its lawyer.
The obligation to disclose documents to the other party continues after the List is served until the proceedings have been concluded. Sometimes relevant documents come into existence, or are found, after the List is served, such as those relating to the amount of damages claimed (for example, the final account in a building contract, where the claim is for the cost of remedial works). A party must notify the opposing party as soon as such documents come to its notice. Such documents are normally disclosed in a supplemental List or a letter to the opposing party's lawyers.
Third party disclosure
A party may apply for an order for disclosure from third parties not involved in the proceedings and will be able to obtain specified documents or classes of documents if it can show that (i) the documents are likely to support its case or adversely affect the case of another party and (ii) disclosure is necessary in order to dispose fairly of the claim or to save costs. The Court of Appeal has held that the word "likely" in this context means "may well", rather than "more probable than not".
Misuse of documents
Documents and information derived from documents obtained from an opponent or third party on disclosure are to be used only for the purpose of those particular proceedings. They must not be shown or given to persons unconnected with the proceedings or used to assist in developing a party's own business or for any other extraneous purpose. It is essential that this warning is brought to the attention of all members of staff who have any involvement in the proceedings or to whom documents obtained on disclosure (or information derived from them) may be communicated. Misuse, even if unintentional, may amount to contempt of court. This rule applies equally to documents and information obtained from an opponent or from a third party at any stage in the proceedings as a result of a court order requiring the production of documents. It ceases to apply once a document has been read or referred to in open court, unless the court orders otherwise.
If a party is dissatisfied with the extent of its opponent's disclosure, it can press the opponent for further documents. An order can be obtained from the court requiring a party to give further specific disclosure or conduct a further search. If the opponent satisfies the court that it has given disclosure as ordered by the court or that the search it has undertaken has been reasonable, it will be very difficult to obtain an order. The court will take account of the overriding objective of dealing with cases justly and at proportionate cost in reaching its decision and an order for disclosure of background documents or documents only indirectly relevant will rarely be made. If an order is made, failure to comply can amount to contempt of court and may have serious consequences, including dismissal of a party's claim or judgment being entered against it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.