Disclosure of Documents


Contents

  1. 1 Introduction
    1. 1.1 What is Disclosure of Documents?
    2. 1.2 What do I need to include on my disclosure list?
    3. 1.3 Disclosure Statement
    4. 1.4 Why do I have to work out what documents need to be disclosed - why not just disclose everything I have?
    5. 1.5 When listing documents I rely on why is it only documents which are probative of "issues in dispute" which I need to list?
    6. 1.6 I have been ordered to search for and disclose all documents which support or undermine my case on a particular issue in dispute. How do I work out which documents they are? 
    7. 1.7 I have been ordered to search for and disclose all documents which support or undermine either parties case on each and every issue in dispute. How do I work out what issues are in dispute? 
    8. 1.8 The order requiring me to search talks about documents which are in (or have been in) my "control". What does "control" mean?
    9. 1.9 How can I disclose documents which have been in my control but are no longer in my control?   
    10. 1.10 I received the other party's disclosure list and copies of the documents on it a few days ago and I am about to send out my disclosure list. But now that I have copies of the other party's disclosed documents in my possession, some of which I did not have before, do I have to consider whether to add those new documents to my disclosure list before I send it out?
    11. 1.11 What is a "document"?
  2. 2 Producing the Disclosure List and keeping records
  3. 3 FAQs 
    1. 3.1 On my disclosure list should the documents be numbered?
    2. 3.2 Should I type up a disclosure list or should I generate it using DCS?
    3. 3.3 If I am using Caselines DCS, should I load video and audio files to Caselines?
    4. 3.4 Should I automatically send copies of all the documents on my disclosure list to the other party or should I wait for them to request copies? 
    5. 3.5 What format should I send copies to the other side in?
    6. 3.6 If I have multiple copies of a probative document, do I have to disclose every copy separately?
    7. 3.7 What should I do if further documents come to light after I have sent out the Disclosure List?
    8. 3.8 Do I have to disclose correspondence between myself and my barrister?
    9. 3.9 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include witness statements?
    10. 3.10 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include expert reports?
    11. 3.11 I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include photographs?
    12. 3.12 It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?
  4. 4 Disclaimer


Introduction

What is Disclosure of Documents?

At a trial in a civil case a Trial Bundle will be produced containing all the documents which the parties wish the court or tribunal to consider. In order to ensure fairness to both parties the court or tribunal will normally order the parties, at an early stage of the litigation, to disclose - i.e. tell each other - which documents they will or might be using at the trial. One reason why the court/tribunal orders documents to be disclosed well before the trial is so that each party can properly prepare for the trial - for example which witnesses a party needs to use and what matters a witness needs to address in their witness statement depends to some extent of what documents will be, or might be, used at trial. 

Another reason for disclosure of documents in advance in that the parties can ask their barristers whether, in the light of all the document disclosed, the barrister's opinion on the likelihood of success has changed. If one party is advised that in the light of the documents they are less likely to succeed then it may be that the parties will settle the case. A case can be settled at any time by agreement between the parties but often the sticking point when parties are considering settling late in the day is who is going to pay the legal costs which both sides have incurred, so having early disclosure of documents allows the parties - if they wish - to try to reach a settlement before the full amount of legal costs of the case has been incurred.

In the past, it was the case that before any document could be used in court it had to be "proved" at the trial by a witness giving evidence about what the document was, how it came to be created, etc. and a great deal of time could be taken up formally proving documents. In modern times there has been a move away from the requirement to formally prove every document in certain types of court/tribunal. Formal proof may still be needed in criminal cases, for example, but in many civil courts and tribunals the rules seek to avoid too much time being taken up with formal proof of documents while at the same time seeking to safeguard the rights of the parties. A common rule is that a party is taken to have admitted the authenticity of all documents disclosed to it unless the party sends a formal notice disputing the authenticity of specific documents. The idea is that only those formally disputed documents have to be formally "proved" at trial thus saving time at the trial. This is a further reason why civil courts/tribunals normally order disclosure of documents in advance of the trial.

Note: There is a difference between the authenticity of a document and whether what the document says is true. For example, say that among the documents which the other side discloses to you is a letter written to you at some time in the past, complaining that you had caused an obstruction by parking your car in a particular place at a particular time on a particular date. If you received the letter at the time but you dispute the accuracy of what it says, the letter is still authentic – i.e. it is a genuine copy of a letter actually written on the date it bears. If, however, you think that the letter is a fabrication – that it is not a genuine copy of a letter written on the date it bears because, say, you didn’t receive it at the time and it gives as your address an address which you didn’t move to until a year after the date the letter was supposed to have been written - that would be an example of a document which is not authentic.


You do not have to eventually include in the Trial Bundle, and use at trial, every document you disclose. You might decide not to use some disclosed documents after all. But you cannot use at trial any document which has not been disclosed - at least not without special permission from the court/tribunal. So it is important to consider carefully what documents you need to rely on and, therefore, need to disclose.

As well as ordering disclosure of documents which you will (or may) be relying on at trial, the court/tribunal will typically (by rules or by specific direction) order you (usually at the same time but sometimes at a slightly later stage) to search for and disclose additional documents - so that the other side can rely on any of those additional documents at trial if it wishes to do so. Similarly the other side is likely to be ordered to disclose to you not only the documents they propose to rely on but also some additional documents.

When ordering parties to disclose documents the court/tribunal may directly identify the documents to be disclosed by describing them:

"Mr Smith must disclose all invoices sent to Mr Jones between between 1/1/1998 and 31/12/2004"


or the court/tribunal may identify the documents to be disclosed indirectly by reference to an issue in dispute:

"Mr Smith must disclose all documents which are or have been in his control which support or undermine his contention that a completion date of 1st November was agreed for completion of the building work."   
 

The court/tribunal may also authorise the use of data culling measures at the point of document collection, such as date ranges and keyword searches, to limit the number of documents which the disclosing party then has  to review.

Disclosing documents usually means providing both a list of the documents and PDF copies of the documents themselves (though sometimes people use disclosure to mean just providing a list and use the word inspection to mean providing copies).  


What do I need to include on my disclosure list?

You should include:-

1. Every document which you wish to rely on at trial must be disclosed but...

2. Don't disclose any correspondence with your lawyer or any written advice from your lawyer – that is privileged

3. Don't disclose without prejudice correspondence - i.e. correspondence in which settlement offers are made and responded to - that is privileged  

4. Don't disclose witness statements or the report of an expert you have instructed in connection with the litigation. The court/tribunal orders or rules will make special provision for when these need to be provided but they are dealt with separately from the Disclosure of Documents stage. 

5. Don't disclose correspondence with an expert you have instructed in connection with the litigation or the expert's report – that is privileged (though sometimes the court/tribunal may make a special order that this must be disclosed if you wish to rely on the report). 

6. You must disclose all documents which the court/tribunal has specifically ordered to be searched for and disclosed unless you are claiming privilege for particular documents.

7. The court/tribunal rules will normally require you to disclose any documents you happen to know are adverse to your case and which are (or have been) in your control. You do not have to carry out any extra search, beyond searches which the court/tribunal has specifically ordered, but if you happen to know of such adverse documents (whether as a result of voluntary searches or for any other reason) you must disclose them unless you are claiming privilege.

8. Don't disclose any correspondence between you and witnesses or potential witnesses – that is privileged (but any old correspondence with them, before litigation or legal advice was thought of, is not in general privileged and should be included if you wish to rely on it to support your contentions on disputed issues or if it comes within 6 or 7 above).


NOTE: Sometimes the court/tribunal makes an order for disclosure of all documents relevant to all disputed issues  - e.g. orders you to search for and disclose "every document which is, or has been, in your control which supports or undermines any party's case on any issue in dispute" and in that case carrying out step 6 above will automatically include step 7 and will also cover most, but not quite all, of step 1, so if the court/tribunal has made such an order you might find it easier to do step 6 first before you do step 1.


Disclosure Statement

Depending on the court or tribunal the rules may rerquire you to make a signed written statement either at the bottom of your disclosure list or on a special form. Exactly what has to be covered in the statement depends on the rules but typically it will include:
  • confirmation that you understand what you have have a duty to disclose and have fulfilled that duty (and that you understand your continuing duty to disclose any further documents which come to light which come within the category of documents ordered to be disclosed). 
  • if you have not disclosed any document of class of documents which come within the court's/tribunal's order for disclosure because you claim privilege, on what basis (in general terms without revealing so much about the documents that that defeats the object of privilege) you claim privilege.
  • if, there are documents which come within the court's/tribunal's order for disclosure which you used to have but no longer have (and no longer have control of) your disclosure list will describe them with reasonable precision and you may be required, in the disclosure statement, to explain the circumstances in which, and the date on which, they ceased to exist or you ceased to have them.
  • if the court/tribunal has ordered you to carry out a limited search for documents (as opposed to an exhaustive - leave no stone unturned - search) the court/tribunal may, after hearing what each party has to say about the costs or other reasons for limiting the search, specify in detail what locations do and do not have to be searched. Alternatively the court /tribunal may order you to carry out a "reasonable and proportionate" search and leave you to decide what is reasonable and proportionate. In the latter case often the disclosure statement will require you to draw attention to any particular limitations on the search which you adopted for proportionality reasons and give the reasons why the limitations were adopted (such as expense).       


Why do I have to work out what documents need to be disclosed - why not just disclose everything I have?

When a Trial Bundle is being prepared for the eventual trial, the court/tribunal expects the parties to be reasonable about what previously-disclosed documents each party requires to be included in it and to be considered by the trial judge because including large numbers of unnecessary documents wastes court/tribunal time (as well as increasing each party's costs). But even though it is true that not all previously disclosed documents have to be included in the Trial Bundle (generally a document is only included if either side wants it to be), disclosing large numbers of documents at the Disclosure of Documents stage will in itself increase each party's costs (even if only a reduced number of documents is eventually included in the Trial Bundle). Of course you have to disclose any document the court/tribunal has specifically ordered you to disclose (unless you are claiming privilege) but when it comes to including, in your disclosure list, any additional evidential documents you will (or might) choose to rely on, you should only add documents which support or undermine a party's contentions on issues in dispute. If you are genuinely in doubt whether a document is relevant, you can disclose it anyway (and, exceptionally a few background or narrative documents - documents which neither support nor undermine any party's contentions on any disputed issue but help everyone to quickly get their bearings - can be helpful) but you should not rely on large numbers of documents which are obviously irrelevant because that would unnecessarily increase everyone's legal costs - your costs as well as the other side's costs because, immediately after both sides have disclosed documents, you will normally be asking your barrister to update their advice on the strength of your case in the light of those documents, and the more documents there are to be considered the more that advice will cost. You might not think that it matters greatly that you are increasing the other side’s costs but it might do. Nothing in litigation is certain. It is not just that if you lose you would normally be ordered to pay the other side’s costs. If you win party, but not as well as an offer you turned down, you might have to pay the other side’s costs incurred after you turned down their offer. So it is wise not to increase the other side’s costs unnecessarily.
   

When listing documents I rely on why is it only documents which are probative of "issues in dispute" which I need to list?

To save time and money, both for the parties and for the court/tribunal, the court/tribunal will accept any point which both parties agree on as being true, and the trial will only be concerned with the judge deciding on those issues which are in dispute between the parties. So for example in a building dispute about delayed completion of work, if both parties agree that the builder negligently damaged the householder's car and there is no dispute about the cost of repair, and the damaging of the car has no relevance to why the building work was late, then documents relating only to the car damage do not need to be included on the disclosure list (unless the court/tribunal has specifically ordered you to disclose them for some reason) because that is not an issue in dispute.

As mentioned above, exceptionally a few background or narrative documents - documents which are not probative but help everyone to quickly get their bearings - can be helpful.


I have been ordered to search for and disclose all documents which support or undermine my case on a particular issue in dispute. How do I work out which documents they are? 

Here is an example to help you. Imagine a dispute between a householder and a builder. There might be a number of issues in dispute such as the quality of the work, what price was agreed, whether any specific date for completion of the work was agreed, etc.  

Suppose that in the court case, the householder claims that it was agreed, right at the outset, along with all the other terms, that the work would be completed by 1st November. However the builder denies that any specific completion date was agreed. Each party has been ordered to disclose all documents which support or undermine its case on this particular issue.

Imagine that you are the impartial judge who is going to have to decide who is right – whether a completion date of 1st November was agreed at the outset or not. In a civil case the judge decides on the “balance of probabilities” – i.e. is it more likely that the date of 1st November was agreed at the outset (as the householder claims) or is it more likely that no specific date was agreed (as the builder claims)? – so it is not just “smoking gun” evidence which is important but any document which tends to suggest that 1st November was agreed or any document which tends to suggest that no specific date was agreed will be a document which supports or undermines a party's case on that dispued issue.  

An email from the householder saying that the work needs to be done by 1st November and a positive response by email from the builder saying that he will agree to do that, are clearly documents which support or undermines a party's case on the dispued issue, but less conclusive documents may also do so. For example a fairly formal letter or email setting out the price and exactly what work is to be done but not mentioning any agreed completion date tends to suggest  that no specific date was agreed because, it can be argued, a completion date, if it had been agreed, would have been an important detail which you would expect to have been included in a fairly formal letter or email which mentions all the other key details.

Of course a formal letter or email giving all the other key details of the agreement but not mentioning a specific completion date is not entirely inconsistent with a completion date of 1st November having been agreed – when confirming what has been agreed people do sometimes miss off key details by mistake – but it tends to suggest that no specific date was agreed and therefore counts as a document which supports or undermines a party's case on the issue. Some documents strongly suggest where the truth lies; other documents provide weaker evidence, but, when producing a disclosure list at the Disclosure of Documents stage, when you find a relevant document you do not need to work out exactly how strong the evidence it provides is: as long as it at least tends to suggest where the truth lies on a disputed issue, it is a document which supports or undermines a party's case on that issue.  

When the builder misses the date of 1st November (or when it becomes clear that it is going to be missed) emails between the householder and the builder at that stage may also support or undermine a party's case on the issue of whether the date of 1st November was agreed at the outset. For example an email from the householder expressing concern about the delay but not mentioning any agreement as to any specific completion date undermines the householder's case because if there had been an agreement as to completion date you would, on the face of it, have expected that to be mentioned. There may be a good reason why it was not mentioned but when deciding whether a document supports or undermines a party's case on that issue you would look at each document and ask yourself the questions: At face value, and leaving aside any explanation which might be given, does this document tend to suggest that a date of 1st November was agreed? At face value, and leaving aside any explanation which might be given, does this document tend to suggest that no specific completion date was agreed? If the answer to either question is Yes, then it is a a document which supports or undermines a party's case on that issue.


I have been ordered to search for and disclose all documents which support or undermine either parties case on each and every issue in dispute. How do I work out what issues are in dispute? 

The pleadings tell you what issues are in dispute. Pleadings are formal documents sent by each side to the other at the beginning of proceedings which are, ideally, drafted by barristers to establish the points in dispute and the points not in dispute. 

After the pleadings stage of proceedings there may be some kind of "case management" stage as which a judge will decide what directions to give for the orderly preparation of the case before the final trial (the directions will normally include an order for disclosure of documents). In order to assist the judge in deciding what directions are appropriate the judge may direct one or both parties to produce a case summary document and/or a list of issues in dispute document. Whilst case summaries and list of issues documents can help you to understand what issues are in dispute, caution should be exercised before relying on them too much because often they list the issues at a high level of generality. Also it often happens that each side has its own preferred way of framing the issues and tends to emphasise as being in issue the point they think they have a strong case on and play down the issues they are weaker on. (This is not always deliberate: one of the reasons why disputes can arise is that one party assumes that something is obvious and can't be disputed when the other side does dispute it.) Generally it is the pleadings, rather than any case summary or document of list of issues document produced for the purposes of "case management", which ultimately defines what issues are in dispute.

Once you know the issues in dispute you then need to search for and disclose all documents which support or undermine any party's case on any issue in dispute - see question immediately above for how to recognise such documents. 


The order requiring me to search talks about documents which are in (or have been in) my "control". What does "control" mean?

The word control covers documents in your physical possession such as paper documents in your desk drawer or filing cabinet or other filing system or on your computer, tablet or phone, but it also covers documents which are not physically in your possession but which you nevertheless still have control of - examples include offsite storage (with an external storage supplier), emails on a "cloud" email system such as Gmail, notes held by your employees which were taken during the course of their employment, documents you have sent to your accountant, and documents lodged with your bank for safe keeping. Even if your bank is holding your documents as security for a loan, and so will not return the originals to you while the loan is outstanding, you are still entitled to ask the bank for copies of the documents, so they are still counted as being in your control.

How can I disclose documents which have been in my control but are no longer in my control?   

Obviously if you no longer have copies of a document, you cannot provide copies, but disclosure means describing briefly what documents they were and what has become of them. You may know about such documents either because you remember having them or because they are referred to in documents you still have. For example if you have a letter written to you dated 30th September 2013 which commences "Thank you for your letter of 25th September 2013" but you do not now have a copy of a letter by you dated 25th September then, unless you have some reason to suppose that that is a mistake, you know that you must have sent out a letter dated 25th September 2013 and that that is a document which you used to have in your possession but no longer do. And if the 30th September 2013 letter is a probative document, it is likely that the letter it is replying to - your letter of 25th September 2013 - will also be a probative document which should be disclosed if it comes within the scope of the court's/tribunal's disclosure order.     


I received the other party's disclosure list and copies of the documents on it a few days ago and I am about to send out my disclosure list. But now that I have copies of the other party's disclosed documents in my possession, some of which I did not have before, do I have to consider whether to add those new documents to my disclosure list before I send it out?

Generally No, because it is unnecessary and may cause confusion. Documents disclosed by the other side after commencement of litigation (or disclosed in the few months before actual commencement of litigation but after a claim had been intimated) are documents disclosed by the other side and should not be included on your disclosure list if you did not have them before.

Courts and tribunals encourage a party considering starting proceedings, to the extent that they can without missing time limits or prejudicing their case by delay, to correspond with the other party so that the party being potentially taken to court/tribunal knows in general terms what the first party is claiming and why, so that full consideration can be given to meeting the claim before the step of court/tribunal proceedings is actually taken. During this "pre-action correspondence" (and sometimes also in the early stages of proceedings) there may be voluntary disclosure of key documents (voluntary disclosure is when a party sends copies of historical documents they have to the other party before the court/tribunal has actually ordered disclosure of documents). Sometimes, particularly if your opponent is not acting with the benefit of legal advice, it may not be precisely clear, when they are sending documents to you, whether they are doing that as part of voluntary disclosure or not. In case of doubt there is no problem including on your disclosure list historical documents which you have only been sent recently as long as you make clear on your disclosure list that you have only received them recently. 

When you receive the other party's disclosure list, it is possible that it may omit some documents which they have previously voluntarily disclosed. They might, for example, have voluntarily disclosed a document thinking it was, or may be, relevant but have subsequently decided it is not relevant (e.g. because the pleadings subsequently served indicate that the particular issue they thought it was relevant to is not in dispute after all). If that document is not already on the disclosure list you are preparing (because it is not a document you already had before it was recently disclosed to you) and you consider it to be relevant and a document you wish to rely on, you should add it to your disclosure list but, when doing that, be sure to make clear on your disclosure list that you have only received it recently. If, by the time you come to study the disclosure list provided by the other party (which you should ideally do within 2 business days of receipt) you have already sent out your disclosure list, you can simply write to the other side identifying the document in question, which was unexpectedly omitted from their disclosure list, and saying that you will be relying on it.   


What is a "document"?

Anything you have in which information of any description is recorded counts as a document, so letters, emails, photos, plans and text messages are all documents. Even an audio or video recording - e.g. an MP3 or MP4 file - is a document and should be included in your disclosure list if its contents are probative and you want to be able to use it (or use a transcript of it) at trial, or if it comes within the scope of the court's/tribunal's  disclosure order.



Producing the Disclosure List and keeping records

To produce a disclosure list you first need to load documents into DCS

Note: DCS is typically used for a number of purposes throughout a case but you should create a separate DCS "case" or "cases" to contain all the documents you will be disclosing (and no other documents). You might just use a single case named e.g. Smith v Jones - My Documentary Evidence but usually it is useful to have two "cases" named Smith v Jones - Documentary Evidence which Came into my Possession in the Past and Smith v Jones - Documentary Evidence Recently Come into my Possession. Generally the court/tribunal rules do not require you to separately identify documents which recently came into your possession and the documents which came into your possession in the past, but it is generally helpful to do so as which documents you were aware of in the past and which documents you have only seen recently can be important in some cases.

You can use DCS to generate a list of documents in Word form from a case, add a suitable heading, and then save in PDF form. If, as is usual, the documents you are disclosing are spread over two DCS "cases" you save the two Word format lists which you have produced as a single PDFYou then use the PDF as your Disclosure List.

You can then provide copies of the documents themselves to the other side by downloading the documents from DCS as PDFs and emailing them together with a PDF copy of your Disclosure List.



It is important to keep records, in one ring binder, showing what documents you have disclosed and to keep in a second ring binder records of what the other side has disclosed to you. By records I mean not just the disclosure lists themselves but any relevant correspondence. For example the other side might have an item named "invoices, various dates" on their Disclosure List. This would be bad practice because each document is supposed to be listed individually with its date. However rather than issue a formal Application to the court/tribunal for an order that the other side produce a more detailed list (which would increase both side's costs and cause delay) it is in most cases better to deal with the matter by correspondence. So you would make sure that you promptly receive copies of the invoices from the other side and, when you receive them, write back listing the invoices you have received copies of, and keep a copy of all this correspondence in the relevant ring binder.

It is important that you organise the records in the ring binders so that if any query arises as to whether you disclosed a particular document to the other side, you can check and prove that you did, and likewise if any query arises as to whether the other side have disclosed a particular document to you, you need to be able to quickly check and be able to prove whether they did or not. Here are some examples of when it might be necessary to check.
  • Generally a party cannot use at trial a document it has failed to disclose, so when the time comes for the trial bundle to be produced, and the parties are discussing what documents each requires to be included in it, either party might query whether a document which the other side wants to be included was ever disclosed.
  • When a witness on the other side is being cross-examined as the trial, if they mention the existence of a document which has not been disclosed then an application can immediately be made to the judge for a disclosure order and in order to make such an application records are needed which prove that the document was not disclosed.


FAQs 

On my disclosure list should the documents be numbered?

Some court/tribunal rules require you initially to provide only a list of documents and do not require you to provide copies of the documents themselves to the other side unless and until the other side request this and agree to pay a reasonable copying charge for those documents they require copies of. When producing a disclosure list for a case in such courts/tribunals it is usual to give each document on your list an identifying number so that the other side can request copies of documents by number. Other courts/tribunals expect copies of documents to be provided as a matter of course without waiting for a request so that identifying numbers may be less important but, even so, they can still be useful, and when you generate a disclosure list using DCS you will notice that the documents are listed by section with each document within a section having a number so that any document can be identified using the section letter and the number - e.g. A22, B3, etc. 

A document number will have been automatically allocated to each document as it was loaded to a DCS section. Generally documents in DCS will be ordered by date within each section and as new documents are loaded into a section it may be that the fact that documents are in chronological order causes some document numbers to be slightly out of sequence within the section. Generally this does not matter because the main purpose of numbering is to give a unique number to each document so that copies of documents can be requested by number and so that you can quickly locate in DCS, and download and send, the documents requested. It would be possible to put the numbers in strict sequence in a section by changing the Order Documents By field for  the section to be number rather than date but most people prefer documents to be listed in chronological sequence (within groups) on a disclosure list even if this means some document numbers being a little out of sequence.   

Should I type up a disclosure list or should I generate it using DCS?

Perhaps because the identifying numbers for some documents on a DCS-generated disclosure list may be a bit out of sequence, some people want to type up a disclosure list from scratch to make it neater, allocating a new series of documents numbers to the documents, but this is not generally a good idea. 

Typing up a disclosure list has a number of disadvantages. First of all it may take you a long time, typing in all those document names and dates.

Secondly, if you load all the documents you are to disclose into DCS and generate the disclosure list from DCS you will find that it reduces the risk of error. Immediately after the Disclosure of Documents stage you will be asking your barrister to advise on the case taking account of the documents you have found and disclosed (as well as documents disclosed by the other side) and later on you will be creating (or collaborating in the creation of) a trial bundle of documents to be used at the final trial using documents from the DCS case. If you generate the disclosure list from the DCS case containing the documents, you know that your documents which you are providing to the barrister (on DCS) so that they can advise, are exactly the same set of documents as are on your disclosure list. But if you type up a separate list and you have accidentally missed off a document from the typed list your barrister may, for example, be advising that you have a good case based on some document which you are later prohibited from using at trial because you have mistakenly not disclosed it. No system is foolproof but using DCS as your primary store of documents and always generating lists from it helps to reduce the risk of mistakes which can have an adverse effect on your case. 

Thirdly, it is a lot easier if once a reference number has been allocated to a document you stick with that reference number throughout the case. This might mean that you end up skipping a number (if, for example, you have loaded up two identical copies of a document by mistake and then delete one of the duplicates) or  that documents are slightly out of sequence when listed chronologically (if some individual documents were loaded up after the main run of documents) but it is much easier to keep to the original numbers than to allocate a new series of numbers and be constantly converting between new and old numbers.        

If I am using Caselines DCS, should I load video and audio files to Caselines?

Caselines charge a per MB fee for storing video files (e.g. mp4 files) and audio files (e.g. mp3 files) so most people who use DCS for all other documents, choose to store audio and video files outside of DCS in cloud storage. Google Drive is a very convenient (and free) cloud storage system though you should note that it, like all Google systems (including Gmail), is hosted outside the United Kingdom and so may not be subject to the same data protection standards as apply in the United Kingdom. For each video or audio file create a one page placeholder, select Get Shareable Link, and paste the link into the placeholder page so that the placeholder page looks something like this:




and store the placeholder page in DCS. This ensures that when you generate a Disclosure List from DCS the list includes the audio and video files.


Should I automatically send copies of all the documents on my disclosure list to the other party or should I wait for them to request copies? 

Depending which court or tribunal it is you may be required to provide a list of the documents you are disclosing together with copies of the documents themselves, or the rules may only require you to provide a numbered list of documents initially and you only have to provide copies of particular documents if and when the other party requests a copy but, even where this is so, if you have copies of the documents in electronic form (i.e. on a computer) it is normally best to provide copies at the same time as the list without waiting to be asked. One reason for this is that if you make a clerical error in describing a document on the list (e.g. giving it the wrong date) and you are not asked for, and do not provide, a copy, the error may only come to light just before the trial and you may be barred from using that document at trial because it was not disclosed, whereas if you had sent a copy it would be difficult for the other side to argue that you should be barred from using it because, even if by accident it was missdescribed on your list, what document it was will have been obvious to the other side from the copy you supplied at the time. However although it is normally best to send copies automatically, this may not apply where large numbers of transaction documents are concerned.

What format should I send copies to the other side in?

It is usually most convenient to send documents as PDF copies unless the other side specifically request a different format. For example if the authenticity of a email is disputed a file in the original format (e.g. EML) might be requested but generally it is easier for everyone if a PDF copy is provided so that those documents which it is eventually decided to include in the trial bundle can easily be processed for that purpose. Also it means that all the disclosed documents can easily be provided by you to your barrister for an updated opinion on the strength of your case. Exceptionally if there is a very large set of paper documents among those to be disclosed and only a small proportion (if any) of that large set are likely to be relied on by either side and included in the trial bundle, it might make sense to allow the other side to physically inspect the documents by appointment, and only provide PDF copies of the small number of documents (if any) which the other side then request. But if there are that number of documents you probably ought to engage solicitors to deal with disclosure for you anyway. 

Obviously you cannot make PDF copies of audio and video files and they should be sent in their original format - e.g. MP3 or MP4. No alterations should be made to files: for example a description should not be superimposed on a photo if it was not like that before litigation began, and a video should not be edited to includes titles if they were not there originally. Of course when providing a copy of the file, you would normally give the copy a file name which is a concise description of the file (e.g. "Video of garden" or "Photo of garden") and that name, together with the date the video or photo was taken, will appear on the disclosure list when you generate it automatically from the file names.

If I have multiple copies of a probative document, do I have to disclose every copy separately?

Generally no. If the copies are identical then you just make one PDF copy and the document is listed once on your disclosure list. If the copies contain differences - e.g. one contains an annotation - then you would treat them as two separate documents (and disclose both) only if the difference is significant for the disputed issues in the case.
 

What should I do if further documents come to light after I have sent out the Disclosure List?

The court's/tribunal's disclosure orders (and/or the court's/tribunal's rules) create an ongoing legal duty so that if, for example, you are ordered to disclose all title deeds in your control for a particular property, that means you have to not only disclose those deeds for that property which are in your control when the order was made but you also have to disclose any further deeds for that property which come into your control at any time in the future. So although the order may not oblige you to search public registers such as the Land Registry, if you do decide voluntarily to ask the Land Registry for deeds for the property (to see if they may help your case) when those deeds then come into your control (when you receive them by post or view them on computer) you are then obliged to disclose them (even if they happen not to support your case or even tend to undermine your case) because of the ongoing legal duty to disclose such documents which come into your control (unless they are privileged).

Sometimes the court's/tribunal's order will require you to search for, and disclose, particular categories of documents which are (or have been) in your control. Sometimes the court's/tribunal's order will simply require you to disclose documents in a particular category which you happen to already know are (or have been) in your control without requiring you to carry out a search. But if you do at any stage carry out a search and find further documents in that category (or happen to come across them in some other circumstances) then, of course, you have to disclose those further documents (unless they are privileged). 

Do I have to disclose correspondence between myself and my barrister?

No. A written Opinion or other written advice from a barrister is covered by legal advice privilege. This means that you can keep its contents confidential and do not have to provide a copy of it to anyone. Not only do you not have to, but you should make sure you do not, provide a copy to the other side by mistake. An Opinion is a frank assessment of the strong and weak points of your case and showing it to the other side would give them an unfair tactical advantage. You will not be relying on the written Opinion or other written advice from a barrister as evidence. You may be thinking that it is a bit odd to say that you will not be relying on a barrister's Opinion, but the point is this. The documents you are identifying at the present time are evidential documents - documents which themselves help to prove one or the other party's case. A written Opinion is not itself an evidential document. It may contain legal arguments but those legal arguments stand on their own merits. Those arguments can be made by your barrister at trial (to the extent that they are still appropriate given e.g. how the witness evidence comes out at trial). Some (not all) legal arguments and factual assertions are of a type which you have to notify the court/tribunal (and the other side) about at the Pleadings stage (if you don't you might not be allowed to use those particulars arguments at trial - so you should have made sure that your pleadings were drafted by a barrister) but a written Opinion which happens to contain those arguments or other arguments is not a document you should disclose to the other party. 


I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include witness statements?

No. Witness statements prepared for the current proceedings are handled differently from other documents. You do not disclose them at the Disclosure of Documents stage but at a later stage of the litigation process known as the Exchange of Witness Statements stage (technically they are privileged until exchanged). Or if you have to go to court and ask for a temporary injunction at an early stage, a short witness statement will be filed and served before the Disclosure of Documents stage, but, whether served before or after, witness statements are dealt with separately from evidential documents disclosed at the Disclosure of Documents stage.There is a reason why the witness statements are exchanged, and showing the other side a witness statement prepared for the current proceedings earlier than necessary would defeat the object of simultaneous exchange of each side's witness statements. At the Disclosure of Documents stage, you will be using the DCS documentary evidence cases to disclose to the other side the evidential documents you will be relying on and any other documents the court/tribunal orders you to disclose at that stage so it is important not to load into those DCS cases anything you will not be disclosing to the other side at the Disclosure of Documents stage, in case that results in you disclosing it at the Disclosure of Documents stage by mistake.

Note that although witness statements produced for the current proceedings are not themselves disclosed at the Disclosure of Documents stage, the witness statements may well refer to documents as exhibits (e.g. "I I refer to the photo marked JJS13 which I took on...") and those documents which are to be exhibited must be disclosed at the Disclosure of Documents stage.    

You should also not disclose earlier drafts of witnesses statements (which are also privileged). Nothing would be gained by you disclosing earlier drafts. Indeed disclosing earlier drafts could actually disadvantage you because the barrister on the other side (particularly if they do not have anything more substantial to question a witness about) may try to make something out of differences between drafts and the final signed statement of a witness. There may be typos in drafts or one word may have been used in a draft, and, when the witness  comes to read it, they may realise that that word could be misunderstood and so substitute in the final version of their statement a different word which better describes what they remember. So do not disclose earlier drafts of witness statements - the courts/tribunals do not expect you to.

Exception: Having said that you do not disclose witness statements for the current proceedings at the Disclosure of Documents stage, I should add that it is different for any statements you may have from other proceedings. Usually any  statements served in the past in other court or tribunal proceedings or in Land Registry applications will neither support nor undermine any party's case on disputed issues in the current proceedings, and will simply be irrelevant, but if you have any statements served or filed in the past in other proceedings which do happen to support one party's case, or undermine another party's case, on the disputed issue in the current proceedings, you should load them (together with any associated exhibits) to the appropriate DCS documentary evidence case and disclose them at the Disclosure of Documents stage. It is only witness statements which are prepared for the current proceedings which are exchanged at the Exchange of Witness Statements stage.


I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include expert reports?

No. In some court and tribunal cases a report from an "expert" such as a medical consultant, engineer, it-consultant or surveyor, is needed. For example, in the case of an unstable wall, a surveyor or structural engineer may be asked to write a report giving an assessment of the present condition of the wall, what remedial work is needed, and how much the remedial work is likely to cost. 

Most court's/tribunal's rules and directions make special provision for expert reports - whether specific permission is needed to rely on them, when they should be exchanged etc. So such expert reports are generally dealt with at a separate stage from the Disclosure of Documents stage (technically they are privileged until they are exchanged).

Exception In exceptional circumstances, however, an expert report might be treated as an ordinary evidential document which needs to be disclosed at the Disclosure of Documents stage if it comes within the scope of the court's/tribunal's order. For example in some cases it is legally important to establish not just the objective facts of past events, but also what people at the time genuinely believed the facts to be. If what someone reasonably believed in the past is disputed then what that person read in the past may be probative of what their belief was. People do not always believe what they read but if someone, in the past, commissioned an expert report they may well have believed what it said. So, depending what your case is about, and whether there are any relevant old expert reports, it is possible that an old expert report might be disclosable as as an ordinary evidential (unprivileged) document. 

I have been ordered to disclose documents which support or undermine a particular contention in dispute in the case, does that include photographs?

Yes it does but remember that you can choose whether or not to disclose photos which are privilegedAll photographs (and videos) which you took for the purposes of litigation or to seek legal advice are privileged. You only have to disclose privileged photographs if you want to rely on them at the trial. Because it is so easy to take photographs people tend to take a large number of the same subject on the same occasion just in case some come out clearer than others. If you have a large number of non-privileged photographs which come within the scope of the court's/tribunal's disclosure order, you have to disclose them all, but for privileged photos, which you choose to disclose so that you can rely on them, you can be selective - e.g. if 10 privileged photographs were taken of the same subject from the same angle on the same occasion you probably only need to include one of the ten - the clearest one. 


Can I show a document which has been disclosed to me by the other side to other people involved in a different case who may be interested?

No. You can only use documents disclosed to you for the purpose of the litigation they are disclosed in and must keep them confidential unless the court/tribunal gives permission for you to use them in some other way (such as in a different case). It is different if a document is referred to at a public hearing.   


It all sounds a bit complicated. Can I ask a barrister to carry out the disclosure of documents process for me?

No. Unfortunately not. See here for the reason why not. If you do not feel able to carry out the disclosure of documents process yourself you will need to engage a solicitor to do this for you.

There are advantages in carrying out the disclosure of documents process yourself. Not only will it save a considerable amount of money but the process of looking through documents you have, including past letters and emails, working out which are relevant, will refresh your memory about what you wrote, when, and why and as a consequence you will be better prepared to answer questions from the witness box at the eventual trial.   

Most clients find that if they take the time to read this webpage (and its links) it becomes clear what they need to do when carrying out the disclosure of documents process. It takes time but they can do it. If, however, you do not feel that disclosure of documents is something you are able to do, you will need to engage a solicitor.

The reason why engaging a solicitor to carry out the disclosure process for you is likely to be expensive is partly that the disclosure process itself can take some time, partly because the solicitor will need to interview you to find out the locations which might need to be searched (you can provide the solicitor with a copy of your computer disk but the solicitor needs some guidance as to where to look and will need to consider with you what other locations may need to be searched), and partly because solicitors are generally reluctant to just carry out disclosure without having ongoing control and conduct of your case - which will entail further costs. In fact if you know you are going to ask solicitors to carry out disclosure of documents for you it is probably best to instruct solicitors from the outset and not instruct a barrister direct. If you are gong to instruct solicitors to deal with disclosure you should certainly instruct them in good time, preferably at least two months before the deadline for disclosure. 


Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.


This page was lasted updated in December 2017. Disclaimer