Litigation is always stressful; for many directors it is a rare event that distracts from their real jobs and consumes resources.
One of the critical stages during litigation is the disclosure process, which is where the two sides go through their own documents and prepare the evidence that will be relied upon at trial. This can be a demanding process for everyone involved.
In partnership with Jasper van Dooren of KLDiscovery, litigation specialist Max Rossiter considers key points that directors need to be aware of when dealing with disclosure.
1. Do you know where your data is held?
We all access a wide variety of data sources on a daily basis - we send and receive emails, make phone calls and join colleagues for virtual meetings. All this information is available at your fingertips, regardless of where in the country you log in from, however, having continuous access to your files does not automatically mean they are stored locally on your device. Knowing the location - are your emails stored locally on a server at your office or in the cloud hosted on the other side of the world? - is paramount when asked to search and collect potentially-relevant documents.
2. What type of data do you need for the disclosure process?
For the majority of cases, email data is the predominant source of evidence, but keep in mind that this may change based on the parameters of the case and the relevant time period. Recent years have seen an exponential growth in alternative communication tools used such as WhatsApp, Skype, Teams and Slack. In addition to the communication data, relevant documents can reside in a variety of locations, such as files stored in a shared project folder, phone calls that are recorded, records from financial systems, saved CCTV footage and pictures stored on mobile phones. Do involve your IT department in this conversation, as they might be aware of old systems that are no longer in use.
3. Custodians of your data – who, what, where and how
Before you delve into exploring the different data sources available within your business, you should identify the potentially-relevant individuals (custodians) that might hold relevant material early on in the process. This is an effective way to limit the scope of the disclosure exercise by steering you to, or away from, certain data sources, as most likely the targeted custodians will not have access to all data within your business. It will also prompt the conversation of where the custodians are located and how this may influence the data acquisition, both from a legal and technical perspective.
4. Missing data – the consequences for you and for the opposition
Data will go missing or be deleted during the course of running a business. Given that litigation often occurs years after the relevant events, it is not surprising that certain documents might not be available. However, expect the other side to make a fuss about this if the data that they want is no longer available. Don’t worry – as long as the documents were not deleted while the dispute was on going you are likely in the clear. The courts recognise that the disclosure process is meant to be proportionate - just make sure you have a clear understanding of which documents have been deleted and why.
5. How are you planning to access your data?
Being able to access your data from anywhere in the world is unfortunately not the same as collecting your data in a defensible manner, a requirement for disclosure. The first step is to find out who manages your data sources identified as potentially relevant. If your company outsources its IT services, we would highly recommend to reach out to this partner as soon as possible. This will give you an understanding of if and how they can help with the collection exercise, and if so, how long this will take. Many IT companies do a great job keeping the infrastructure up and running, but they might not have the resources to collect the information quickly, as is often required during litigation. Alternatively, if IT is managed in-house, include your head of IT as soon as possible in conversations, as they will be a valuable asset during the early conversations while you prepare for disclosure.
6. Sensitive documents and how to handle them
Sometimes, especially in cases where dishonesty is alleged, the other side might request that you search through the personal data of your employees, which could involve searching their text messages or personal emails to see if they contain information that is relevant to your case. In general it is a good idea to deal with these conversations head on and give your employee the chance to explain anything that could be found on their personal devices, or to decline the search. It is important to involve your solicitors or in-house counsel in this process as well in case there are any employment issues that could arise, such as the employee feeling worried that your solicitors might access their bank details or personal photos. Often a short conversation between the employee and your solicitors will reassure them that the solicitors have no interest in reviewing those documents, and will not share anything irrelevant with their employer.
7. Disclosure – a moving target
Unfortunately, disclosure is not a linear process. A lot of thought is put into the approach during the outset of each matter, but new facts, issues or documents can be uncovered during the process that requires the initial approach to be amended. In general it is suggested to collect data with a relatively wide, but proportionate scope. Agreed keywords and date ranges will be applied at the next stage to filter down this larger set before review commences. The main benefit of this approach is that if the scope of the disclosure changes for whatever reason, you can simply amend the filtered criteria, rather than recollecting data and putting an unnecessary burden on your business.
8. Key disclosure documents and what to expect
The way in which disclosure is dealt with in the English courts has recently changed. As a result, a senior team member in your business will have to be responsible for liaising with your solicitors to access the documents required and to guide the disclosure process. This individual will be required to sign a certificate setting out what searches were undertaken and the limitations/changes to the searches that had not been initially considered, as well as how the parameters might have changed over the course of the disclosure process. You should identify this person quickly and ensure they have the necessary time and authority to deal with third party providers and internal business units to get the documents they might need.
9. Remote working
With the Covid-19 pandemic more people are now working remotely, away from their usual office. This can be problematic for numerous reasons – key documents might only be available at the office, and key people that understand a business’ systems are may no longer be physically available. However, our experience has shown that with careful planning, remote working is not a problem - as long as people are adequately prepared. Key business units and individuals should be made aware that the disclosure process is ongoing and that they might get a phone call by the solicitors asking for help with certain documents. It might also be worthwhile at the start of the process to introduce the junior team members who will be actually carrying out the searches to the junior solicitors who will be reviewing the documents. This way they know who they can speak to quickly if they need something specific.
10. Wildcards and how to deal with the unexpected
Litigation is unpredictable, and the disclosure process especially can throw up wildcards, as it is often the first time the parties have had a deep dive through the documents surrounding the case. The key thing to remember is that while this process might be new to you, the solicitors you have instructed have likely dealt with these issues before. It is therefore best to deal with things quickly and decisively and keep your lawyers informed. This will enable them to best guide the process and also ensure that the disclosure is carried out in accordance with the law. It was never intended, and nor is it, a perfect process, and the courts and case law recognise this.
We can guide you through the litigation process
We understand how daunting the disclosure process can seem. Our team of specialist dispute resolution lawyers provide clear and pragmatic advice at every stage; keeping our clients’ commercial objectives in mind and helping them to make the right decisions for their business.
If you’re in the middle of litigation, or about to start the disclosure process, we can help. Contact a member of our commercial disputes team to discuss the best course of action to secure a positive outcome for your business, as quickly and cost-efficiently as possible.
From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.
Our free legal helpline offers bespoke guidance on a range of subjects, from employment and general business matters through to director’s responsibilities, insolvency, restructuring, funding and disputes. We also have a team of experts on hand for any queries on family and private matters too. Available from 10am-12pm Monday to Friday, call 0800 689 4064.