Disclosure and inspection — overviewIntroduction to Disclosure

Disclosure is an important part of the litigation process and is regulated by the CPR and case law. It can occur pre-action, during proceedings and post proceedings and is usually the most time consuming and costly of all the litigation stages. Both practitioners and their clients have disclosure obligations. They should also strive to identify, preserve, collect, review and disclose all relevant documents, including electronically stored information, as efficiently as possible. The aim of the disclosure practice notes is to demystify the disclosure process and provide practical guidance through each stage to help practitioners and their clients achieve this efficiency. The stages are outlined in the introduction practice note, which also briefly explains what disclosure is, when it should start and its scope.

Disclosure - glossary

The disclosure process contains many technical terms. Some of these have specific meanings under the CPR, others have arisen through market practice or are words used to describe IT practices which may not be familiar to lawyers. It is therefore important to have a proper understanding of the terminology and to use the glossary if you are at all unsure.

Pre-action disclosure

Some pre-action protocols require parties to provide certain disclosure before proceedings have started. Where a pre-action protocol does not apply CPR 31.16 sets out the procedure for making applications at this stage.

The court must address the distinct questions of jurisdiction and discretion when applying the four conditions forming part of CPR 31.16(3)(a) to (d), which are

• whether it is likely that either party will be party to the proposed proceedings

• the documents being sought fall within the requirements of standard disclosure under CPR 31.6

• it is desirable for the disclosure to be made

Generally, the respondent will be entitled to its costs for the application and the provision of the documents.

Pre-action disclosure by a non-party: Norwich Pharmacal orders

CPR 31.18 gives the court the discretion to make orders for disclosure in circumstances that may not be covered under other CPR provisions.

A Norwich Pharmacal order is an order for disclosure to enable the claimant to discover the identity of a wrongdoer. It is available against anyone against whom the claimant has a cause of action in relation to that wrong. The court can make such an order against a non-party prior to the commencement of proceedings.

Generally, an innocent non-party will be awarded its costs of the application and compliance with any order. The Civil Procedure Rules set out the procedure and the documents required to make an application to the court.

An objection to a Norwich Pharmacal application can be made on the basis that it is a breach of the Human Rights Act.

E-Disclosure – Practice Direction 31B

From 1 October 2010 CPR PD 31B replaces CPR PD 31 2A.2 to 2A.5 relating to the disclosure of electronic documents. This form of disclosure is also known as electronic disclosure or e-Disclosure. The new practice direction encourages parties to reach agreement in relation to the disclosure of electronic documents in a proportionate and cost-effective manner and provides guidance as to how this can be achieved. The emphasis is on early collaboration between the parties. The practice direction also sets out the considerations to be taken into account in relation to the scope of e-disclosure and the basic requirements for disclosing electronic documents. Practitioners are obliged to advise their client of the need to preserve disclosable documents. An Electronic Document Questionnaire (the ED Questionnaire) is appended to the new practice direction to help parties exchange information about the scope, extent and form of electronic documents so that agreement can be reached on these issues. There is a separate practice note on the ED Questionnaire

Electronic Disclosure Questionnaire

It is proposed that the ED Questionnaire is exchanged between parties in order to provide information in relation to, amongst other things:

• the extent and method of the reasonable search

• the problems with any accessibility of electronic documents

• the most suitable format for e-disclosure.

Whilst it is not compulsory to exchange the ED Questionnaire the court does have the power to order the parties to do so. The ED Questionnaire contains a statement of truth and whoever signs it must attend the first CMC and any other hearing in relation to disclosure to answer questions.

Disclosure – Solicitors Obligations

Solicitors have obligations to the court and their clients throughout the disclosure process. These include advising a client of the need to preserve documents, ensuring that a client makes full disclosure and co-operating with the other side, particularly in relation to e-disclosure.

Disclosure – Parties Obligations

Under the provisions of CPR 1.3 a client must act in a co-operative, proportionate and reasonable manner during the litigation process to minimise costs. These general principles place specific duties on a client in relation to disclosure, including the duty to preserve documents, make a reasonable search for documents falling within standard disclosure, co-operate in the disclosure process and actually disclose.

Disclosure – identifying the documents

You need to know how a client manages and stores its information in order to identify the type and extent of its electronic and hardcopy documents and what is potentially disclosable. This will assist with planning the whole disclosure process. Two factors that play an important part in the process of identification are the case against a client, and where and how a client stores its commercial information. Other factors include:

• the definition of documents under CPR 31.4

• the meaning of standard disclosure under CPR 31.6

• what is considered a reasonable search for documents under CPR 31.7

• what documents are in a client’s control

• the five principles set out in CPR PD 31B that a client should bear in mind when considering disclosing electronic documents

• the principals of proportionality and reasonableness

Careful records should be kept of the steps taken to identify, preserve and collect potentially relevant data.

Disclosure – preserving the documents

Whilst there is no duty to preserve documents prior to proceedings being issued, it is good practice to preserve potentially disclosable documents. There may be cost consequences if this does not happen and a court thinks that it would have been reasonable to do so.

Following proceedings being issued there is a duty to preserve documents and a defaulting party could face a number of consequences if it does not do so, such as:

• expensive satellite litigation

• adverse inferences being drawn

• the striking out of all or part of the case a

• wasted costs orders

• sanctions by the Solicitors Regulation authority for breach of professional obligations

The practice note explores some specific factors to consider whenpreserving back-up tapes, laptops, handheld devices, portable data storage media and documents held by non parties.

You should consider instructing an e-Disclosure Consultant to advise on preserving electronic documents.

Disclosure – the reasonable search – standard disclosure

There is no automatic right to disclosure, a party is only obliged to provide disclosure pursuant to a court order. Even if parties agree the scope of disclosure they will still need the court to approve it.

The general rule is that parties provide standard disclosure. Standard disclosure has a specific meaning under the CPR. It takes into account the following factors:

• the meaning of a document under CPR 31.4

• the relevance of the documents pursuant to CPR 31.6 which defines relevance as documents assist and adversely affect a case

• the reasonableness of any search for relevant documents set out in CPR 31.7

• the documents that have been in your client’s control pursuant to CPR 31.8

The principles of proportionality and reasonableness are applied to each of these factors. The practice note looks at these factors in more depth.

Disclosure – collecting the documents

By the time you reach this stage you should have:

• identified the potentially relevant documents

• determined what is reasonable and proportionate in terms of searching for and collecting electronic documents

• met and agreed with the other side the scope of information to be collected and the use of technology to do so

If there is a large amount of disclosure a client may need assistance with the collection process. It is best if this is co-ordinated via one person at the client.

Disclosure – processing the documents

Once the electronic and hardcopy documents have been collected they need to be stored and processed.

If the volume of electronic documents is very large you should discuss with the other side the tools and techniques that can be used to reduce the burden and cost of e-disclosure. This includes agreeing a form of electronic searching such as the use of keywords, clustering or de-duplication.

Disclosure - reviewing the documents

This often involves either the law firm, the client or a third party service provider hosting the data on a secure server to which authorised individuals will have secure access. You will then need to work with the client and any e-disclosure consultant retained as to how best to set up review systems. Some of the issue you need to think about well in advance of this stage are:

• strategies to limit the scope of documents to be reviewed

• who will form part of the review team

• the targets for the review team

• the right tools to do the job

• involving the client

Careful records will need to be kept of all search criteria and parameters adopted as these may well need to be included in the disclosure statement and may be the subject of challenge if those searches are subsequently considered to be inadequate.

Disclosure – preparing the List of Documents

The List of Documents (also known as the Disclosure List) must be in a specific format; forms are available from the court. The court form is split into four parts and deals with:

• the disclosure statement

• documents where there is no objection to inspection

• documents a party has but objects to inspection

• documents a party had but no longer has in its control

The disclosure statement should be signed by the client as it places a positive duty on it to ensure it meets its disclosure obligations.

If you have a large element of electronic documents the form of the List of Documents can be amended to accommodate this. CPR PD 31B gives guidance on the way in which this can be done. You should also attempt to agree the format with the others side.

Multiple corporate parties within the same corporate group can prepare a single disclosure list.

Disclosure - Inspection

This is when you allow the other side to see those documents set out in the List of Documents that you have not objected to being seen. You can also see the documents the other party has listed as being available.

The CPR does not govern where or how inspection should take place, but does state that if you want to exercise the right to inspect you must formally do so in writing. Inspection can be by way of original documents or copies of these documents. It is up to you and the other party to agree the form of inspection.

In relation to electronic documents, if you are unable to agree the format CPR PD 31B sets out the minimum requirements which are that the document should be in its native format in a manner which preserves the metadata relating to the date of creation of each document.

Inspection is normally only allowed following receipt of an undertaking to pay the reasonable copying charges. CPR PD 31B requires the parties to discuss the costs of inspection and how these will be shared prior to the first case management conference.

Disclosure – grounds for objecting to inspection

There are a number of grounds for withholding inspection of a document, these are:

• the documents may be irrelevant

• documents may no longer be in a client’s control

• it may be disproportionate to the issue s in the case to permit inspection of a certain category of documents

• the documents are privileged

• without prejudice communications

• the documents trigger public interest immunity

Confidential information is not automatically protected from disclosure in the same way that privilege is. Confidential and privileged information in disclosed documents can be redacted.

If a document is disclosed or inspected by mistake, the inspecting party requires court permission to use it. You should agree with the other party prior to the exchange of the List of Documents the protocol to be followed in these circumstances.

Any objections are usually set out in the List of Documents, but where you have agreed to dispense with one, then in writing to the other party.

There are specific practice notes dealing with the principles of privilege, without prejudice and public interest immunity.

Disclosure – specific disclosure

If a party considers the other side's disclosure to be inadequate, it can apply for specific disclosure. Generally, applications are made following a review of standard disclosure; there is no specific time stipulated in the rules.

Requests for further information maybe used if information is not forthcoming through the disclosure process.

Disclosure – applying for specific disclosure

The Civil Procedure Rules set out the procedure and documents required to make an application. The extent to which specific disclosure can be sought depends on which track the claim has been allocated to and the court in which the application is heard.

Disclosure – the courts approach to specific disclosure

The court will take into account all the circumstances of a case and the overriding objective of the CPR when deciding whether to make an order for specific disclosure. There is no other guidance in the CPR but in practice the following factors are likely to be taken into account:

• whether standard disclosure is adequate

• whether the disclosure that has been given to date is adequate

• whether there are gaps in the list of documents

• whether the documents sought are relevant to the issues

• the complexity and nature of the issues

• the financial position of the parties

• the cost and burden of ordering specific disclosure

• the principles of proportionality

The practice notes also sets out the approaches taken by various courts.

Disclosure by a non-party

The court can order that a non-party provide disclosure of documents or allow inspection of property. This applies to all types of claims. The Civil Procedure Rules set out the procedure and the documents required to make an application to the court. The application must state the specific documents required and that the documents are likely to support the party's case. The court will generally grant an order for such disclosure where it is in the interests of justice but not where it is unnecessary or oppressive.

Extraterritorial disclosure - post judgment

It is important for winning parties to be able to enforcement judgments made in their favour. In order to do this, the judgment creditor may need to obtain information from the judgment debtor about its assets, particularly those located overseas. Extraterritorial post-judgment disclosure is usually ordered in conjunction with a freezing injunction, though it can be ordered on a stand-alone basis. The court’s jurisdiction arises under section 37 of the Senior Courts Act 1981 and CPR 71. In making such an order, the court's policy is that a judgment creditor should normally have all the information it needs to execute its judgment anywhere in the world. In practice, this will usually be a list of assets against which the judgment creditor can then seek enforcement.

Privilege

A privileged document must be disclosed, for example, by category but parties can object to inspection. There are different types of privilege, for example, common interest privilege. Different rules apply to different types of privilege; the rules are set out in the Civil Procedure Rules. The House of Lords in the Three Rivers case provided important guidance on the issue of privilege. Once a document is privileged it will always be privileged, subject to inadvertent disclosure/waiver.

Without prejudice communications`

Communications between parties which are a genuine attempt to settle a claim are inadmissible as evidence in court. This applies to oral and written communications. Generally, this rules applies to a document as a whole or discussions at a meeting in their entirety. There are clear rules, in the Civil Procedure Rules and case law, as to when communications will be regarded as having been made 'without prejudice'. There are also exceptions to these rules. When exceptions apply, 'without prejudice' communications are admissible in court.

Mediation agreements generally state that the mediation is 'without prejudice'. However, exceptions may apply.

Public Interest Immunity

A party may object to disclosure/inspection on the grounds that production of the document(s) would be injurious to the public interest. This objection is known as a claim to Public Interest Immunity (PII). The party claiming PII must follow a three stage process looking at the documents individually (rather than on a class basis) before seeking to assert PII. CPR 31.19 sets out the procedure for seeking permission to withhold documents from disclosure/inspection on grounds of PII. It is for the court, ultimately, to determine whether or not to order production. The court will need to balance the public interest in not revealing the contents of the document against the interests of justice in the case being tried by reference to all the available evidence.

E-disclosure checklist

This checklist bullet points some of the more important issues that a practitioner should bear in mind at the start of any case for project management purposes. This list will need to be adapted for smaller cases or disputes relating to discrete issues.

E-disclosure checklist for pre-CMC discussion

Following the introduction of CPR PD 31B the emphasis is on parties adopting a collaborative and co-operative approach at an early stage in the litigation process. A strand to this approach is the requirement that parties meet prior to the first case management conference in order to discuss and attempt to agree e-disclosure issues. This checklist is designed to assist with this process by bullet pointing the main factors that should be taken into account in relation to:

• scope of the reasonable search

• methods of search

• potential problems with extent of search and accessibility of electronic documents

• the list of documents

• inspection

• the cost of the exercise