Disclosure

Carrying Out a Timely Disclosure Exercise

In order for your client to be able to discharge its disclosure obligations in a timely manner, certain key steps should be taken. Here, we will provide a practical guide as to how to manage a typical disclosure exercise in the context of English civil litigation.

Step 1: Preservation of Data

As soon as litigation is in contemplation, your client should be advised to preserve its data and to suspend any document destruction policies. A failure to do so may mean that potentially relevant documents which could have been helpful to either your client’s case or the other side are no longer available. There is also the risk of adverse inferences being drawn by the judge.

This “litigation hold” process should be explained to your client in order to ensure appropriate coverage across all data sources. Furthermore, your client should be made aware of the fact that it is for the client to discharge its disclosure obligations.

Step 2: Strategy and Counselling

Prior to collecting any data from your client, it is important for you to spend sufficient time with the relevant people at your client’s organisation for the purposes of assessing what the potential data sources are with reference to the issues in the case. This phase should ideally take place after the claim and defense have been filed, but before the case management conference (“CMC”).

Knowledge of your client’s data will greatly assist you when agreeing the disclosure timetable with your opposing counsel. It will also avoid data being missed which could potentially jeopardize the timetable set by the judge. Furthermore, knowledge of your client’s operations and working practices will be invaluable when identifying what data should be collected in the first place. For instance, if you discover that for the most part your client’s employees used their personal mobiles and laptops as part of your client’s “bring your own device” policy, this will be very relevant when collecting data.

This information will also help you to anticipate other potential issues, such as data privacy restrictions, or the need for English translations, thereby enabling you to resolve them ahead of time and avoid missing the disclosure deadline.

Step 3: Collections

Once you have identified the data sources with your client, forensically sound methods should be used to collect the data. Furthermore, at all times an up to date record of what has been collected, and when, should be maintained. This will prove useful when providing the other side with details of the steps taken by your client, as well as for identifying further data sources as new issues arise in the litigation.

Step 4: Profiling the Data

In cases involving large volumes of collected data, sufficient time should be built into the disclosure timetable to allow for early case assessment (“ECA”) tools to be utilized where appropriate.

ECA tools should provide you and your client with a detailed profile of the data prior to reviewing any documents. For instance, you should be able to see how much data there is by file type, by custodian, between custodians, with third parties, by language, and so on. This information may also reveal behavioral patterns or themes, or even unexplored issues. All of this should assist you in terms of managing the data and determining how to review the data in the most effective way.

Step 5: Preparing for Review and Liaising with Opposing Counsel

Completing steps one through four above should provide you with a great deal of information concerning the data. This knowledge should be used to identify the most appropriate technologies and review methodology for your particular case. For instance, if there is a significant volume of foreign language data involved, foreign language reviewers will need to be found, vetted, and ultimately trained.

As to which review technology to utilize, you should explore whether or not to use technology-assisted review (“TAR”), such as predictive coding, in order to prioritize the review of certain data. In appropriate cases, TAR can greatly assist the speed and effectiveness of the review compared to a manual review.

Once you have determined your review methodology, you should seek to liaise with your opposing counsel so that they are made aware of how your client intends to fulfill it disclosure obligations. Notwithstanding the fact that the English Civil Procedure Rules 1998 already require you to correspond with opposing counsel prior to the CMC, it is always a good idea to keep the other side appraised of your client’s situation. This reduces the risk of challenges being made later down the line with respect to your client’s disclosure, thereby saving time and expense.

Step 6: Case Management Conference

By the time the CMC takes place, the parties may already have agreed on how the disclosure exercise will be conducted by their respective clients. If not, you will need to be prepared to defend contested aspects of your client’s intended approach to disclosure at the CMC. At the CMC, the judge will set down the timetable and mechanics for disclosure, which your client must comply with. Therefore, it is important to ensure that the timetable works for your client so that it does not miss the deadline.

Step 7: Reviewing the Documents

Typically, the most time consuming component of the disclosure exercise is the actual document review. It is therefore essential that someone with sufficient knowledge and experience of disclosure exercises has overall conduct of the process.

Irrespective of which review technology is ultimately used, a review protocol should be put into place to ensure that documents are reviewed in a timely manner, that the review process is subject to stringent quality controls, and that there is a built-in mechanism for ensuring that issues can be raised at regular intervals so as to avoid any last minute problems.

Step 8: Troubleshooting

It is not uncommon for issues to arise during the disclosure process, but what should you do when it becomes apparent that the deadline cannot be met? You should assess how much additional time you need and approach the other side for a time extension. A short time extension of a week or so is not usually an issue in our experience. However, be prepared to justify why a longer time extension is required as you may ultimately need to obtain the Court’s permission.

Conclusion

The key to a timely disclosure exercise is to plan ahead and to anticipate problems before they arise. It is also important that knowledgeable and experienced lawyers are engaged by the client.

About Tess Blair and Afzalah Sarwar

Tess Blair and Afzalah Sarwar

Tess Blair and her team offer full-cycle electronic discovery and information governance services to organizations across the globe. Tess is the founder and leader of Morgan Lewis’s eData practice.
Afzalah Sarwar focuses her practice on complex commercial matters involving both litigation and arbitration. She represents both public and private companies, multinational corporations, banks, private equity firms, and others in matters including multijurisdictional contractual and banking disputes, insurance disputes, and governmental investigations.

Check Also

Group Legal Services

Navigating Group Legal Services With Technology – Part IV

Dave Coffey returns with the final installement of "Navigating Group Legal Services with Technology".