New disclosure rules: understanding your duties

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A new year brings new court rules with the introduction of a mandatory two year Disclosure Pilot Scheme in the Business and Property Courts. As well as making significant changes to the disclosure procedures, the new rules set out steps that parties must take as soon as they are aware that proceedings may be commenced.

What is Disclosure?

Disclosure is the process by which parties are required to identify and make available to each other documents which are relevant to the issues in the case. The definition of a document is broad and includes any record of any description containing information, whether in paper or electronic form. Electronic documents can be held on computers or on portable devices. Information on memory sticks and mobile phones is also included. It is easy to see that with the growth of electronic communications, the disclosure process can be an unwieldy exercise.

What is changing?

The Pilot Scheme aims to modernise the process and introduce a change in culture. It recognises that the current procedures and extensive searches may not be suitable in every case. Instead disclosure should be more focused and limited so that it is reasonable and proportionate and linked to the relevant issues in the case. The Pilot introduces an early stage of disclosure of key documents (Initial Disclosure) once proceedings are commenced followed by the option to request Extended Disclosure based on one of five disclosure models, each with different search obligations.

The Disclosure Duties

Parties considering court proceedings should take note of the Disclosure Duties which are central to the new rules. These duties apply at the outset, even before proceedings are started. As soon as you know that you are or may become a party to proceedings, you are under duties to the court.

The duty to preserve documents

You must take reasonable steps to preserve the documents that may be relevant to the dispute. Preservation extends to documents which might otherwise be deleted or destroyed in accordance with a document retention policy or in the ordinary course of business. You are required to suspend relevant document deletion or destruction processes for the duration of the proceedings and in suitable cases, make copies of sources and documents and store them.

You must send written notification to all relevant employees and former employees about the duty to preserve documents. This notification can be in any form and must identify the documents or classes of documents to be preserved. You must also notify the recipients that they should not delete or destroy those documents and should take reasonable steps to preserve them.

If agents or third parties hold any documents on your behalf that may be relevant to an issue in the proceedings, you must take reasonable steps so that they do not delete or destroy the documents.

When proceedings are started, you will be required to confirm to the other parties that you have taken steps to preserve relevant documents. As part of the disclosure process, you will also be required to sign a disclosure certificate certifying compliance with your Disclosure Duties.

The duty to disclose known adverse documents

You are required to disclose documents which are adverse to your case as set out in the rules. This will include documents which contradict or materially damage your contention or version of events on an issue in dispute, or which support the contention or version of events of the opposing party.

If you (or in the case of a company or organisation, any person with accountability or responsibility within the company or organisation for the events or the circumstances) are aware of an adverse document, then it will have to be disclosed.  You must take reasonable steps to check the position with any person who has had such accountability or responsibility but who has since left the company or organisation.

Other Disclosure Duties

Other duties require that searches for documents are conducted in a responsible and conscientious manner. You must act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party. Reasonable efforts must be taken to avoid providing documents to another party that have no relevance to the issues in the proceedings and you must comply with a disclosure order made by the court.

Breach of the duties is a serious matter and the court can penalise any individual or party who fails to comply. If in doubt about your obligations, you should take immediate legal advice.

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