Disclosure and e-disclosure in litigation - the key issues

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.