Disclosure and e-disclosure in litigation - the key issues
23 September 2015
Commercial proceedings are won and lost on the quality of a party’s evidence, most specifically documents and correspondence that must be disclosed to the other side.
In litigation, a failure to properly retain or search for documents or electronic documents (emails and word documents etc) relevant to a dispute can result in costs penalties or even proceedings for contempt of court. It is wise to put procedures in place so that documents are preserved should a dispute materialise later.
The fact that a document may be commercially sensitive does not override the duty of disclosure owed to the court.
The way in which electronic documents are created and stored leads to particular issues:
The metadata connected with an electronic document can also be disclosable in litigation. This typically records when the document was created, who has created it and edited it, and on what date.
Opening or viewing the document can inadvertently destroy the metadata.
Metadata will not be relevant in every case, but could be of vital importance for some.
Electronic documents that have been deleted are normally recoverable, and therefore potentially disclosable.
Establishing where relevant electronic documents are held, so that these can be properly preserved and searched as appropriate.
The approach taken by the courts is that the duty to retain and search for documents should be proportionate to the case. So the scope of the duty, and hence the extent of any search, will depend on the nature of the litigation weighed up against the cost of searching for, and retrieving, documents.
Where a dispute arises, useful steps which can, and should, be taken include:
Set up a paper file and/or electronic database specifically to preserve documents.
Identify where any relevant documents may be found.
Take advice on whether it is necessary to employ a computer technician to quarantine or image the relevant records.
Tell any staff who may have been involved in the work giving rise to the dispute not to delete any records or create any new records concerning the project or the potential dispute.
Nick Southwell is an experienced litigator who handles a range of commercial disputes. This includes contractual disputes, landlord and tenant matters, property disputes and professional negligence claims. He is an accredited civil and commercial mediator.
A 2021 Court of Appeal decision suggests that landlords are off the hook if they failed to serve the energy performance certificate (EPC) or gas safety certificate (GSC) for an…
Our litigation & dispute resolution partner outlines some of the commercial risks involved in proceeding to trial in an intellectual property infringement case. In trademark infringement and passing off cases,…
In this Spring update our experienced partners in commercial property and property litigation will share insight on several topics. The first is a look at development land and will include…
Our website uses cookies to improve your experience while you navigate through our website. Out of these cookies, the cookies that are categorised as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyse and understand how you use our website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies but it may affect your browsing experience on our website. You can find our cookie policy here.
Necessary cookies are absolutely essential for our website to function and enable core functionality such as security and accessibility. These cookies do not store any personal information. You can block these cookies by changing your browser settings, but this may affect how the website functions.
We use performance cookies such as Google Analytics to help us count the number of visitors and to see how visitors move around our website when they are using it. This helps us to improve the way our website works, for example, by ensuring that users are finding what they are looking for easily. The cookies collect information in a way that does not directly identify anyone. For more information on how these cookies work, please see our cookie policy.
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Cookie
Duration
Description
__cf_bm
30 minutes
This cookie, set by Cloudflare, is used to support Cloudflare Bot Management.
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Cookie
Duration
Description
_ga
2 years
The _ga cookie, installed by Google Analytics, calculates visitor, session and campaign data and also keeps track of site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognize unique visitors.
_gat_UA-562889-3
1 minute
A variation of the _gat cookie set by Google Analytics and Google Tag Manager to allow website owners to track visitor behaviour and measure site performance. The pattern element in the name contains the unique identity number of the account or website it relates to.
_gid
1 day
Installed by Google Analytics, _gid cookie stores information on how visitors use a website, while also creating an analytics report of the website's performance. Some of the data that are collected include the number of visitors, their source, and the pages they visit anonymously.
vuid
2 years
Vimeo installs this cookie to collect tracking information by setting a unique ID to embed videos to the website.
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.