Day-to-day management of documents and information

6. From the moment litigation is “in reasonable contemplation”, both parties have positive obligations to preserve documents for the purposes of disclosure. Those obligations apply under the Civil Procedure Rules, including Practice Direction 57AD.

7. When is litigation “in reasonable contemplation”? This is sometimes a difficult question to answer. In general, it should be assumed that this is as soon as there is any sign that a dispute appears like it might lead to litigation. At that stage, all potentially relevant documents should be preserved.

8. Even better, businesses should have in place standard document management and data retention processes so that potentially relevant documents are either automatically preserved, or can be quickly and easily preserved, if the business becomes involved in litigation.

9. For the same reason, data retention policies should (to the extent possible) be consistent across different offices. Determining to what extent that is possible also involves an examination of local law requirements.

10. It is useful if a member (or members) of your IT team is designated as the point of contact for the in-house legal team (and/or external lawyers) to assist with the various technical steps that need to be taken if and when a dispute arises (which we discuss further below). This person should ideally have a thorough understanding of your business’s document storage systems, any automatic document deletion protocols and the tools available to automatically lock down storage locations that may hold relevant documents (for example, Microsoft Outlook 365 has a “Litigation Hold” function that can be applied to preserve the contents of a mailbox).

11. It is common for litigation to arise years after the events in dispute took place and after key documents have been either deleted or lost. This can materially affect a party’s prospects in litigation. Solid claims or defences may fail simply because the key facts cannot be evidenced by reference to contemporaneous documents that have become lost.

12. Some best practices that your business may wish to incorporate into its day-to-day document management policies with potential disputes in mind include:

(a) Making sure that documents are stored in accordance with a standard document storage protocol such that key documents are preserved and are easily accessible. For example, your business might set up a business-wide storage site where all contracts are stored so that they can be easily located at a later date.

(b) Ensuring that all relevant documents are within your company’s practical (as well as legal) control. For example, with disputes in mind (and sometimes also for regulatory reasons), important commercial communications should not be exchanged through the employees’ personal email or instant messaging (IM) accounts. IT policies should be reviewed to reflect this.

(c) Setting sufficient document retention/archiving practices to ensure that documents relating to a particular transaction are not deleted before that transaction has been performed fully and, ideally, not before applicable limitation periods for claims or legal proceedings have expired.

(d) Creating regular back-ups of data, especially data stored locally on laptops or mobile phones.

(e) Ensuring that any documents received in hard copy, as well as any hand-written notes or annotations, are digitised, filed and stored in a manner allowing their future identification.

Early days of litigation – preservation of documents

13. As soon as litigation is in reasonable contemplation, each party to that potential litigation is required by the court’s rules to take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings.

14. This obligation to preserve documents is a strict one. If potentially relevant documents are lost as a result of a party’s failure to comply with its document preservation obligations, even if this is accidental, the consequences can be severe. The court may order that the party file a witness statement explaining why the documents have been lost. The court may also draw “adverse inferences” from the loss of documents; i.e., it may infer that the deleted documents would have been harmful to the party’s case. This can adversely affect a party’s prospects of succeeding at trial.

15. As a minimum, the Civil Procedure Rules specifically require that, in order to preserve documents, the relevant parties must:

(a) suspend any of their existing document deletion or destruction processes/policies for the duration of the proceedings;

(b) send a written “document hold notice” to all current and former employees who may have documents that could be relevant to any issue likely to be in dispute, identifying to the recipients the documents they need to preserve, and explaining that those documents should not be deleted or destroyed; and

(c) take reasonable steps to ensure that their agents or third parties who may hold documents on the party’s behalf also do not delete or destroy documents that may be relevant to an issue in the proceedings.

16. In practice, collecting all relevant documents at as early a stage as possible, and transferring them to your lawyers, is the safest way of ensuring adequate document preservation. Capturing an accurate copy “snapshot” of all relevant – or even at least potentially relevant – documents at this early stage, and keeping those documents secure, significantly reduces the risk of potential issues and criticism later down the line. It also of course places your legal team in a better position to advise, based on a review of documents, at the early stages of a dispute or legal proceedings.

17. Naturally, you may be concerned about the potential costs and disruption associated with transferring documents to lawyers. For complex matters with a factual background spanning many years, the transfer of documents can be challenging. However, there are ways in which these concerns can be addressed:

(a) When sending document hold notices, ask the recipient to confirm where they think potentially relevant documents may be held (e.g., on laptops, mobiles, email servers, SharePoints, etc.). This can help ensure that the key document storage locations are identified quickly.

(b) Using specialist software and other tech-based solutions, typically not available to teams in-house, can assist with the capture and storage of vast sets of documents in a relatively effortless and cost-effective way. These solutions can accommodate the straightforward collection, processing (including in order to remove spare duplicate documents), searching and storage of documents.

18. Some other important practical considerations at this stage include:

(a) Remember that the meaning of “document” for the purposes of the Civil Procedure Rules requirements is very broad and extends to any form of recorded information. Aside from the most obvious “documents”, such as emails, or Word, Excel and PDF files, it includes pictures, audio and video recordings, SMS and IM messages, WhatsApp messages, WeChat messages, and social networking and other internet posts.

(b) The obligation to preserve documents extends to taking reasonable steps to ask former employees, agents and third parties to retain relevant documents.

(c) Ensure that any data or documents stored only on portable devices, including mobile phones, are copied and preserved as soon as possible.

Initial Disclosure

19. Parties to litigation must now provide, at the same time as serving their statement of case (whether a claim or a defence), an “Initial Disclosure List of Documents”.

20. The Initial Disclosure List of Documents must include:

(a) any key documents on which a party relies in support of its claims, whether expressly or otherwise;

(b) any documents referred to in the statement of case; and

(c) any key documents that are necessary to enable the other party to understand the claim or defence being advanced.

21. Documents that have already been provided to the other party or are known to be in the other party’s possession do not need to be disclosed. Further, and in contrast to ‘Extended Disclosure’ under Practice Direction 57AD, parties are not required at the Initial Disclosure stage to disclose adverse documents or conduct a search for documents, even though, in practice, such a search will already have been conducted.

22. Parties can agree that Initial Disclosure is not required, and there is no requirement to give Initial Disclosure if it would comprise more than 1,000 pages or 200 documents.

23. Initial Disclosure can serve as a useful tool, particularly if parties have strong documentary evidence in support of their case, as it encourages parties to make a realistic assessment of their case early on in the proceedings in light of the Initial Disclosure identified. For this reason parties should pause agreeing to dispense with Initial Disclosure, especially because the next opportunity to obtain documents from the other party is usually during Extended Disclosure, by which time the parties will already have incurred significant costs in preparing their statements of case.

Data collection

24. As we explain in the next section, parties to litigation are required to discuss and agree the extent of searches to be carried out of the data that they have identified as being potentially relevant to the issues in dispute (for example, key custodian email accounts and key document repositories).

25. That said, in practice it is usually advisable to begin the process of collecting potentially relevant documents before the parties have agreed how to carry out their respective searches.

(a) It can often be very helpful for a party’s external lawyers to conduct a limited search and review exercise of the key data sources (for example, the email accounts of key witnesses) while preparing the statements of case. This will help ensure that legal teams have a proper understanding of the facts from an early stage.

(b) When considering what search terms should be applied for the purposes of collecting documents for disclosure, it is important that “test searches” be run of the search terms that are proposed by each party to confirm the number of “hits” for each search term. This allows for discussion of the proportionality of each search term.

(c) The collection of email inboxes and other document repositories is often a very extensive and time-consuming process. If parties wait until the searches are agreed, it can often delay proceedings.

(d) It is useful for parties to understand how much time is required to review documents for the purpose of Extended Disclosure. This is easier to do if the document collection process is commenced at the same time as the procedural timetable for the case is agreed.

26. When collecting potentially relevant documents and transferring these to external lawyers for the purposes of disclosure, it is usually advisable to “cast the net wide”. This can avoid the costs of multiple collection exercises, and it also simplifies the collection process and reduces the risk that errors may be made which, in serious cases, can undermine the integrity of a party’s disclosure exercise and require the exercise (or parts of it) to be redone at additional expense. Taking a wider approach may well lead to higher data storage and processing costs in the short term. However this is usually mitigated once the searches are agreed by archiving documents that are outside the scope of the searches.

27. Typically, the documents that are collected are uploaded onto a review platform such as Relativity, where the data will be processed to make it fully searchable in accordance with the key word searches agreed as part of the Disclosure Review Document process. The collected documents can then be reviewed in order to identify documents that are relevant to the issues in dispute and to filter out any privileged documents.

Completing the Disclosure Review Document

28. Once appropriate document preservation steps have been put in place and Initial Disclosure has been completed, the next important step in the disclosure process is the completion of the Disclosure Review Document (the ‘DRD’).

29. The DRD is a standard form document that is used to define the scope of the parties’ respective disclosure exercises. The parties are required to discuss and seek to agree the DRD before the first case management conference (‘CMC’). In practice this means that work on the DRD should begin soon after the final statement of case has been served.

30. The discussion of the DRD should be a collaborative process. It is often possible to agree much, and sometimes all, of this document without the court’s intervention. However, the court can help resolve areas of disagreement at the first CMC and, if necessary, a Disclosure Guidance Hearing (these are discussed further below).

31. There are two parts to the DRD: (A) Section 1, which lists the Issues for Disclosure and corresponding Disclosure Models; and (B) Section 2, the disclosure questionnaire, which contains amongst other matters, details of the type of data held by each party, any irretrievable documents, proposed search parameters and key-word searches.

Section 1 of the DRD: the Issues for Disclosure and Disclosure Models

32. The Issues for Disclosure should be a short and neutral summary of the key disputed factual issues that arise out of the statements of case.

33. The Issues for Disclosure determine, to a very large extent, the documents that must be searched for and disclosed by each party (i.e., the disclosable documents). This is because a document will be disclosable if it supports or adversely affects a party’s case in relation to one of the Issues for Disclosure.

34. For each Issue for Disclosure, the parties must agree the appropriate disclosure “Model”. There are five Models – Models A, B, C, D and E. However, only Models C, D and E require search-based disclosure. These are as follows:

(a) Model C – disclosure of specific documents or narrow classes of documents requested by the other party. This can be used in combination with Model D or Model E.

(b) Model D – disclosure of documents which are likely to support or adversely affect either party’s case in relation to the relevant Issue(s) for Disclosure. This is usually the most appropriate Model where search-based disclosure is necessary.

(c) Model E – Model D disclosure plus the disclosure of documents which may lead to a “train of inquiry”, which may then result in the identification of Model D documents. This will usually only be ordered in fraud cases where documentary evidence is especially important and there may be an assumption that the alleged wrongdoer has taken steps to “cover their tracks”.

35. The Issues and Models for Disclosure are of importance both because they define the documents that must be disclosed and because they are the first stage in defining the scope of the search and review exercise that each party must carry out to locate disclosable documents.

36. For this reason, careful thought needs to be given to the Issues and Models for Disclosure. Practical considerations include:

(a) What categories of documents might the other side hold that might assist our case? It is crucial to ensure that these will be captured by the Issues for Disclosure.

(b) Is it clear what documents will (and will not) be relevant to the Issues for Disclosure? A lack of clarity on this point can lead to arguments after disclosure as to whether certain categories of documents were relevant and should have been disclosed.

(c) Do the Issues for Disclosure reflect the statements of case? The Issues for Disclosure should not introduce new issues which do not appear in the statements of case.

Section 2 of the DRD: the disclosure questionnaire

37. Section 2 of the DRD is the second stage in defining the scope of the parties’ search and review exercises. There are two key elements to completing the Section 2 DRD:

(a) First, each party must set out the types of documents under its control that may be relevant to the Issues for Disclosure, where these documents are held (email servers, shared folders, etc.) and whether it believes any such documents that were formerly under its control may have been lost or destroyed.

(b) Second, each party must set out the steps it proposes to take to search these locations for documents relevant to the Issues for Disclosure that will then be disclosed. In almost all disclosure exercises, this second step will include agreeing with the other side key word searches and/or other search criteria to be run over potentially relevant documents. Such searches will be defined by three parameters:

(i) Custodians – these are the individuals (usually employees or agents of the disclosing party) who have created or received potentially relevant documents.

(ii) Date ranges across which the key word searches will be run.

(iii) Key words – these are words or phrases that are likely to appear in relevant documents.

38. This second step, namely the agreement of the searches for documents relevant to the Issues for Disclosure, is often the most heavily negotiated aspect of the disclosure exercise. The key considerations are:

(a) The court will expect that each party carries out a rigorous search and review exercise to identify the relevant documents under its control.

(b) However, the court will also be mindful of the need to ensure that the costs of the disclosure exercise do not spiral to the point where they are disproportionate to the value of the case and the importance of the documentary evidence that might be found.

39. We set out below some key practical considerations for completing the Section 2 DRD and negotiating the parties’ search and review exercises:

(a) Involve members of the IT team – The Section 2 DRD can only be properly completed with input from someone who has a thorough knowledge of the disclosing party’s document storage systems. For organisations of any size, the person best qualified to provide this information will usually be an experienced member of the IT team.

(b) Involve the “custodians” – The involvement of the custodians – the people who create and/or store documents, e.g., on their phones or in their email inboxes – is important for two reasons:

(i) First, whatever the standard document storage policies of an organisation, the reality is that everyone will have their own preferred methods of storing documents and it is important to speak to the custodians to ensure that relevant document storage locations are not missed and that the document collection and search process is not broader than it needs to be. For example, the custodians might be able to confirm that certain parts of an organisation’s document storage systems were not used to store documents relevant to the Issues for Disclosure.

(ii) The custodians (or a core group of key custodians) will often be able to provide useful insight into the key words that should be proposed both for your own key word searches and also for the other side’s.

(c) Start work on the Section 2 DRD during the document preservation stage – Much of the information needed for the Section 2 DRD regarding document storage locations will be gathered at the document preservation stage.

(d) Run test searches – Before proposing search parameters for its key word searches, a party should run test searches to check that the parameters that it is proposing do not generate a disproportionately large number of search hits that will be very expensive to review.

(e) Consider the use of data analytics – It is often possible to achieve substantial efficiency savings through the use of data analytics before commencing the manual review of the search hits. For example, analysis of email domain names may quickly identify obviously irrelevant emails (e.g., third party marketing emails) or emails which are more likely to be relevant (e.g., emails with external recipients). It will often be possible to agree with the other side that such documents do not need to be manually reviewed, but can be “mass tagged’” as irrelevant and/or privileged. This reduces the costs of the review exercise significantly.

(f) Consider using technology assisted review – In large disclosure exercises, technology assisted review tools can achieve substantial efficiency savings. For example, it may be possible to agree with the other side to use machine learning tools to automatically “tag” certain documents as non-responsive so that they do not have to be reviewed.

Disclosure Guidance Hearings

40. A ‘Disclosure Guidance Hearing’ is a short and informal court hearing that a party may request at any stage to obtain guidance on the application of the disclosure regime.

41. In many cases, any areas of disagreement can be resolved at the first CMC, and a Disclosure Guidance Hearing will not be necessary.

42. However, in complex disclosure exercises where there may be very significant differences in view between the parties as to the correct approach, a Disclosure Guidance Hearing can be a helpful way to resolve disagreements.

43. A Party that despite significant differences does not seek judicial guidance on disclosure at an early stage may later be criticised if it seeks to complain about the other party’s approach to disclosure and/or if it later seeks orders for additional disclosure.

The search and review exercise and production of documents

44. At the CMC, the court will give directions in relation to disclosure. These will include:

(a) an order regarding the scope of disclosure (usually an order that disclosure should be in accordance with the DRD); and

(b) an order that the parties complete their search and review exercises and disclose relevant documents by a specified deadline.

45. This order sets the clock running for the parties to complete their search and review exercises. The parties must then proceed to carry out the searches set out in the Section 2 DRD and manually review the results to identify documents relevant to the Issues for Disclosure.

46. This phase of the disclosure process will be primarily managed by external lawyers. Nonetheless, the involvement of in-house lawyers is important to ensure the process is run properly. Common issues that may require in-house lawyers’ involvement include:

(a) Non-relevant confidential information in relevant documents – In certain circumstances it is permissible to redact, or limit the disclosure of, especially sensitive non-relevant information contained in relevant documents. It is important for the in-house legal team to liaise closely with external lawyers to identify any such information and consider the most appropriate steps to be taken in relation to it.

(b) Privilege – It may not always be obvious on the face of a document whether the information it contains is privileged. It may, therefore, be necessary for the external lawyers to check with the in-house lawyers the purpose for which certain relevant documents were created.

47. Once the parties have completed their respective search and review exercises, they must “produce” to each other copies of all relevant documents that they have identified over which they do not claim privilege.

After document production

48. It is sometimes thought that disclosure ends with the production of documents. In fact, there will be several important additional workstreams to complete:

(a) Checking the integrity of the other side’s disclosure – It is important to check whether there appear to be gaps or inconsistencies in the other side’s disclosure. This process can be greatly assisted through the use of “gap analyses” such as the ones used by our firm’s in-house eDiscovery experts.

(b) Identifying key documents for witness evidence – The documents submitted as evidence following document production should, to a large extent, inform a party’s approach to witness evidence. There are four key aspects to this:

(i) It is important that the witness evidence is consistent with the contemporaneous documents. If a witness’s version of events in a witness interview appears to be contradicted by the documents that have been produced, one needs to know that before witness statements are filed and to consider how to deal with the inconsistencies.

(ii) It will often be important to deal directly in a witness’s statement with any unhelpful documents that emerge out of disclosure.

(iii) A party may conclude, having reviewed the documents produced, that the position on certain factual issues is sufficiently clear from the contemporaneous documents, meaning that it is unnecessary to adduce witness evidence on these points. This is an important tactical consideration because of the cost and risk of extensive witness evidence.

(iv) It is important to consider whether additional disclosure might be justified – even if it appears that the other party has complied with its disclosure obligations, it may be that there are documents that it has produced that open important new lines of inquiry and, potentially, requests for further disclosure.

(c) Consider whether to request additional disclosure – There are broadly two grounds on which a party may seek additional disclosure from the other party:

(i) The other party has failed to adequately comply with the existing disclosure order made by the court at the CMC – if the court is satisfied that this is the case, it may order that party to carry out further steps to search for and disclose relevant documents.

(ii) It is necessary for the just disposal of the proceedings for a party to disclose specific further documents or narrow categories of documents.

(d) While the costs of seeking additional disclosure mean that such applications should not be made lightly, it is, nonetheless, important to consider whether the other party has disclosed everything that it should have disclosed. This is, again, an area where a client can play an important role since its understanding of the relevant commercial context will be important in identifying obvious gaps in the other side’s disclosure.

Summary and suggested take-aways

49. Disclosure is a team effort – Disclosure is probably the aspect of litigation that requires the highest degree of client involvement, and the key to an efficient and effective disclosure exercise is achieving close cooperation between all the relevant stakeholders, namely:

(a) in-house lawyers;

(b) factual witnesses;

(c) in-house IT professionals;

(d) external lawyers; and

(e) eDiscovery professionals assisting the external lawyers.

50. Appoint a “disclosure manager” from within your IT team – In-house IT professionals have a pivotal role to play in disclosure. Having an appointed disclosure manager within your IT team who has a basic familiarity with the disclosure process will greatly enhance your ability to efficiently deal with your disclosure obligations should you become involved in disclosure.

51. Prepare early – Disclosure is a time-consuming process with many different moving parts. Often one of the greatest challenges is ensuring that those involved from the client, in particular data custodians and in-house IT professionals, have sufficient time around their existing professional commitments to do what is required of them. Early preparation is, therefore, key to ensure that everyone involved understands their respective roles and has the lead time that they need. 

52. Disclosure should not be “trench warfare” – Disclosure is supposed to be a collaborative process. Usually, the most cost-efficient way to conduct disclosure is to be open with the other side, listen to their perspectives and make concessions if it is reasonable to do so. This is what the court expects to see and, if it is necessary to involve the court, it will strengthen a party’s position if it can show that it has acted reasonably in its approach to disclosure.

53. Disclosure of sensitive confidential information – A common concern for disclosing parties is that commercially sensitive information contained in the documents that they disclose may be exploited by the other side for a commercial advantage. The starting point here is that under English law a party that receives information and documents during disclosure may not use this for purposes other than in connection with the litigation. If the sensitive information is not relevant to the proceedings, it is likely to be possible to agree with the other side, or obtain an order from the court, that the information should be redacted. If the information is relevant, it may be possible, for especially sensitive information (for example, IP-related information), to put in place measures that restrict its disclosure (for example, it might be disclosed only to the parties’ lawyers and not to any commercial team member) and/or the use to which it can be put at trial.

54. Disclosure of personal data – Another common concern is that the transfer of personal data to external lawyers and/or the disclosure of personal data may constitute a breach of applicable data protection regulations. While legal advice should always be sought where this is a concern, it is important to note that data protection regulations often contain provisions that allow for the processing of personal information where this is required in the course of litigation. Where documents containing personal data must be disclosed, it may often be possible to agree with the other side, or obtain an order from the court, that sensitive personal data will be redacted.

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