Introduction to Disclosure

Disclosure can often be the key phase in legal proceedings. Up to this point one or more of the parties may be in the dark, unclear of the true merits of their claim or defence, but disclosure can serve to clarify who has the better of the arguments and where the balance of power lies for settlement purposes.

1. An Introduction to Disclosure
13 October 2012
Paul Lowrie

2. Today’s Talk
• Broad overview of disclosure across different jurisdiction
• Disclosure in England

3. Disclosure Regimes
Different jurisdictions around the world have very different
approaches to disclosure
What are the different approaches?

4. Disclose Regimes
US Discovery

5. 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

6. Disclosure Regimes
English Disclosure

7. 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

8. Disclosure Regimes
Civil Code Jurisdiction Culture

9. 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

10. Disclosure in England

11. 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

12. 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!

13. England – Timing
When is disclosure made?
Normally following completion of pleadings
Can obtain pre-action disclosure in certain circumstances
The duty is continuing

14. 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

15. 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

16. 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

17. 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

18. Questions?
Any questions?

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