An Introduction to Disclosure13 October 2012

Paul Lowrie

Today’s Talk

• Broad overview of disclosure across different jurisdiction

• Disclosure in England

Disclosure Regimes

Different jurisdictions around the world have very different approaches to disclosure

What are the different approaches?

Disclose Regimes

US Discovery

Disclosure Regimes

US Discovery

Generally considered to be widest of any common law country

Must disclose not just relevant information but also information that may lead to relevant material

Lengthy procedural process including the use of interrogatories, depositions and requests for production of documents

Disclosure Regimes

English Disclosure

English Disclosure

Civil Code Jurisdiction

Common law approach but less onerous than in the USA

A party must disclose documents:

• on which it relies

• which adversely affects its case

• which may support the case of another party

Disclosure Regimes

Civil Code Jurisdiction Culture

Disclosure Regimes

Civil Code Jurisdiction

In contrast with common law jurisdictions, most have a more restrictive approach and some have no formal disclosure process

Often will only need to disclose documents that support own case

Disclosure in England

England – Scope of Disclosure

The following documents must be disclosed:

Documents on which you rely

Documents which adversely affect your case

Documents which adversely affect another party’s case

Documents which support another party’s case

England – Scope of Disclosure

Essentially, a party must disclose all relevant documents

Which are or have been in its possession

Which it has a right to possession

Which it has a right to inspect or take copies of

Delete documents at your peril!

England – Timing

When is disclosure made?

Normally following completion of pleadings

Can obtain pre-action disclosure in certain circumstances

The duty is continuing

England – Exceptions

The following documents need not be disclosed

Privileged documents

Irrelevant confidential documents or information

However – documents which are commercially sensitive or confidential and relevant must be disclosed

England – What is a Document?

CPR 31.4 – “ ‘Document’ means anything in which information of any description is recorded”

Examples:

Emails (internal and external)

Metadata

Policy documents

Diary and calendar entries

Photographs

Manuscript notes

England – Sources of Documents

Depending on the particular case, the disclosure exercise could include a search of:

hard copy files

files held by individuals

PCs and laptops

databases

back-up tapes

mobile phones

PDA devices and other handheld devices

USB sticks/disks/CDs/DVDs and other portable data storage media

servers

off-site storage

England – Reasonable Search

CPR 31.7(2) – The factors relevant in deciding the reasonableness of a search include the following:

The number of documents involved

The nature and complexity of the proceedings

The ease and expense of retrieval of any particular document

The significance of any document which is likely to be located during the search

Questions?

Any questions?

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