Discovery is the legal process by which the parties to litigation reveal their documentary evidence to each other.
In this briefing we outline, in general terms, what the definition of ‘documents’ encompasses, which documents need to be disclosed, and which documents can be withheld legitimately.
The term ‘documents’ is not restricted to paper material – it extends to anything upon which information may be recorded in an intelligible manner, or may be capable of being made intelligible by the use of equipment. Included within the definition are, accordingly, tape recordings, computer records, computer files, voicemails, scanned images and facsimiles, microfilm, microfiche, texts and images to name but a few.
Often computer ‘documents’ contain metadata, which can provide far more information than the hard copy. This electronic data may itself be highly relevant, since it may reveal when a document was created, who has viewed it, edited it etc. The parameters of discovery of electronically held documents can accordingly be complex, and parties should consider not just the ‘hard copies’ but also the servers and other locations where relevant data and documents could be stored, such as backup tapes, ‘clouds’ and disaster recovery sites.
The Royal Court Rules 2004 (the “Rules”), specify the documents a party must disclose to the other parties. The Rules require each party to provide the other parties with “a list of the documents which are or have been in his or her possession, custody or power relating to any matter in question in the cause or matter“.
Each party to litigation will, once pleadings have closed, have to produce a list of documents in accordance with the Rules, and then swear an affidavit verifying that the list of documents is complete and accurate. Following this, each party will have to permit the other party to inspect those documents and provide copies of all those documents which are requested from that list to the other party to the litigation. In the event that documents have been omitted, applications can be made for discovery of specific documents or classes of documents, but there is a high burden on the applying party to show that the affidavit of discovery is incorrect.
The obligation to give discovery is a continuing obligation, and if further documentation is discovered after initial discovery has been made, then those additional documents must be disclosed in a supplemental list.
The obligation to make discovery is extremely wide: it is an absolute obligation and there is no limit to the search which a party ought to carry out to find what documents it has (or had) in its possession, custody or power. The obligation is to identify all documents which are, or were, in its possession, custody or power, and includes not only originals but also copies of those documents.
Documents in the ‘possession’ of a party are those which it physically holds (in paper or electronic format). Those in its ‘custody’ are those which is it is holding for another. Documents in its ‘power’ are those which the party has a right to obtain from the person or entity holding them.
However, the obligation only applies to documents which relate to ‘any matter in question’ in the proceedings: this is identified by the content of the pleadings.
The discovery obligation extends not only to documents which are directly relevant to any fact in issue in the proceedings, but also to documents which it is reasonable to suppose contain, or may contain, information which may enable either party to advance its own case or to damage that of its opponent. The key question is whether the document could reasonably be expected to lead to a line of enquiry which would be of assistance to a party.
The parties to litigation are under an obligation to preserve all relevant documents. It is not permissible, once litigation is either instituted or contemplated, for a party or potential party to destroy documents, whether deliberately or inadvertently.
Although the obligation to provide discovery is extremely broad, there are two broad exceptions to it on the grounds that specified classes of documents do not have to be disclosed if they are ‘privileged’. Such documents still have to be identified, but now shown to the other party to the litigation.
The first category of such documents concerns those subject to ‘litigation privilege’. This protects documentary communications between a client and its lawyer, and between one of them and a third party (for example, a potential witness of fact or provider of an expert opinion) providing that the document was created or brought into existence for the dominant purpose of obtaining or giving legal advice in relation to pending or contemplated litigation, or collecting evidence for such litigation. ‘Litigation’ means adversarial proceedings, usually before a court or in an arbitration, and there must be an actual or reasonably contemplated case upon which advice is being sought or given.
The second category concerns those documents subject to ‘legal advice privilege’. This is potentially wider in ambit as it does not depend on there being litigation pending or contemplated. Any documentary communication between a client and lawyer, made for the purposes of obtaining or giving legal advice, will be privileged and thus may be protected from disclosure in future litigation, which is not at that time pending or contemplated.
Although these principles may be simply stated, their application can be far less straightforward.
One of the key issues in upholding a claim for privilege concerns the identity of the “client”, in relation to whom legal advice is being sought and whether this encompasses the whole organisation (such as a company) or merely specific parts of it (such as its compliance department). In the Three Rivers litigation, the English Court of Appeal took a narrow view of who or what constituted a “client”. The Court of Appeal decided that in the case of a large organisation, the client was not the organisation as a whole but, rather, the specific unit or department within that organisation actually instructing the lawyers. Memoranda, communications or documents prepared outside that specific department were not covered by privilege and, therefore, would be discoverable.
Care is accordingly required, not only when considering what documentation must be preserved in the context of actual or reasonably contemplated litigation, but also how communications, both internal within an organisation, and external between that organisation and third parties, are handled in order to prevent the inadvertent creation of potentially damaging, and disclosable, documentation.
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