Aside from poor filing practice and the failure to adopt consistent naming conventions, the biggest challenge for businesses looking to locate and retrieve key documents is determining where those documents may be located, particularly where personal as well as business devices have been used and correspondence has been sent via email, text or social media’, says Mark Glenister. ‘While there is technology available help search for electronic documents once a dispute has arisen, it is far better to take steps to organise documentation appropriately before a dispute arises.’
‘By ensuring your paperwork is in order you are more likely to have the evidence available to back up your case, are less likely to miss something important and are also likely to incur less legal fees when a problems arises.’
Disclosure obligations in commercial cases
Whenever a commercial dispute arises that looks destined for the courts, there will be an obligation to disclose relevant documentation. What counts as a relevant document will depend on the facts, but the default position is that disclosure must be made of:
- any documents on which you intend to rely;
- any documents which adversely affect your case or that of your opponent;
- any documents which support your opponent’s case; and
- any documents which a rule of law or court requires you to produce.
To comply with your disclosure obligations, you must make a reasonable search for any relevant documents. Reasonableness in this context will be judged having regard to:
- the number of documents involved;
- the nature and complexity of the proceedings;
- the ease and expense involved in retrieval; and
- the significance of any documents likely to be found during the search.
In cases where a significant amount of documentation may have been generated, or where a lot of the documents are likely to be recorded digitally, restricted search parameters may be agreed. For example, in a dispute concerning a contract entered into on 1 July 2014 it may be agreed that only documents created from 29 June 2014 onwards need to be searched, unless of course there were pre-contract enquiries before this date. Likewise, for disputes where there is a lot of email correspondence to trawl through, it may be agreed that the search should be limited to emails containing certain key words likely to be relevant.
Wherever possible, you should gather any documents which are likely to need to be disclosed before you attend your first meeting with your lawyer. This will help them to assess the strength of your case quickly and to identify any potential problem areas.
Organisation of documents
To aid the quick identification and retrieval of documents in future disputes, it is important to adopt a document organisation system in which documents belonging to a particular project or client can be easily identified, and which ideally allow for the grouping of particular document types. For example, pre-contract correspondence, draft contracts, final contracts, general correspondence, accounts enquiries, complaints etc.
Where personal devices are routinely used for work purposes, steps should be taken to ensure all relevant documentation is transferred to your business systems, either at the time of creation by obliging your employees to work on a cloud-based system which allows shared access, or subsequently by emailing the documentation across and manually uploading it.
Document destruction policies should make it clear that no documentation should be destroyed once a dispute has arisen, even where it is your usual practice to destroy documents after a set period of time.
Technologies available to help
If despite your best efforts to keep your documentation in order, you still cannot be sure that you have located everything that is relevant, there are technologies available to help – at least when it comes to electronic communication. These range from basic systems that will search for particular key words or within certain date ranges, to more sophisticated systems which can search by reference to a concept or for documents which appear to have similar content.
In all cases where a search of electronic documentation needs to be carried out, it is important to involve your IT provider at any early stage. You may also need to involve external IT specialists where particularly extensive searches are required. It is also imperative that you have a commercial dispute resolution lawyer on board who is fully familiar with the courts disclosure requirements.
For further advice on any of the issues raised in this article, or for commercial law advice more generally, please contact JPP Law on 020 3468 3064 or email [email protected].
