Document management - pCloud and DCS

Once litigation has started, or is about to start, relevant documents are held in the Caselines Digital Case system (DCS), It is important only to store relevant documents in DCS partly because Caselines charge for every page stored but also, more significantly, because your barrister will be referring to DCS each time you ask them to do a piece of work and if the barrister has to look through many irrelevant documents on DCS that will be likely to increase the fee they quote for each piece of work.

At the outset when advice is first sought from a barrister it is important that steps are taken to preserve all documents which might be relevant evidence. At this early stage a fairly wide view is taken of what might be relevant. The next stage is to take advice from a barrister about the prospects of success in various kinds of potential legal action and as part of this process (a) some key relevant documents may be identified, and (b) some documents may be considered and deemed to be not obviously relevant to the particular legal case which is to be advanced. At this stage it is convenient to load documents which might be relevant, to pCloud (and Irista for digital photos), so that the barrister can easily access those documents initially identified as relevant them.

At the start of litigation the barrister would normally, as part of the process of drafting pleadings and/or applying for temporary relief (such as an interim injunction), identify and load documents to DCS, but thereafter it is your responsibility to identify further relevant documents to be loaded to DCS.       

As the litigation process proceeds it will at some stage be necessary for documents not so far considered in detail (i.e. those not in category (a) or (b)) to be considered by you. This might consist in reviewing every document not so far considered or, if there are thousands of such documents, some form of initial selection, such as keyword searching, may be used to "cull" some of the documents so that only a subset are then reviewed by you in detail for relevance. You might carry out searches in public records and/or potential witnesses may be asked whether they have relevant documents. This process will result in some further documents being identified as relevant and some other documents being deemed not obviously relevant.

However the question of which documents are relevant needs to be kept under review by you as the litigation process unfolds because an issue which was thought not to be in dispute between the parties might turn out to be disputed - potentially making some documents previously not deemed relevant now seem relevant - or an issue in dispute might be conceded by one side making it no longer in dispute meaning that some documents previously deemed relevant no longer are. 

Sometimes a document deemed not obviously relevant unexpectedly becomes relevant when another document is being considered. Take the example of a dispute about a right of way. Whether a certain route has been used, as of right, for at least 20 continuous years in the past may be relevant to whether a right of way exists, and whether a made up track existed over that route at particular times in the past may therefore be relevant. Correspondence indicating that a water tower (some distance east of the route and not accessed by it) was built in 1925 would be, on the face of it, irrelevant. Likewise correspondence indicating that a radio mast was erected in 1950, some distance further east, would also seem irrelevant. But suppose some old photographs come to light, taken looking east and showing the track. Any photo in which neither the water tower nor the radio mast can be seen must have been taken before 1925. Any photo showing the water tower but not the radio mast must have been taken between 1925 and 1950, and any photo showing both must have been taken after 1950. So it turns out that the correspondence, previously thought irrelevant, happens to be relevant, in combination with the old photos, because it helps to date the photos and thus shed light on the question of for what period of time the track was made up and, presumably, used.

You have to carry out this document management function, loading identified relevant documents to the DCS Documentary Evidence case for the use of the barrister, and keeping other documents - those not currently obviously relevant but to be kept under review - in pCloud to be copied to DCS if developments make them relevant after all. It is convenient to use pCloud for this purpose because whether a document is legally privileged affects whether it has to be disclosed to the other side if it becomes relevant, and if the advice of a barrister is sought on the question of whether a document is privileged and, if so, whether privilege should be "waived" so that it can be used, it is easy for a link to the document on pCloud to be provided to the barrister. 

Don't give me access to your cloud storage folders

The DCS system is where I will look, from now on, once you have set it up, for certain key documents as the litigation proceeds, when you ask me to carry out work at each stage. Now that litigation is continuing, it would not be cost-effective for me to search through your cloud storage, so don't give me access to it but instead you should put copies of the key documents and relevant documentary evidence, in DCS as explained below under Organising documents in DCS.  

You will be granting me access to the DCS Pleadings, Orders and Witness Statements case, Comments on Statements case and Documentary Evidence cases, as described below, so that I can use them for reference each time you ask me to do the next piece of work as the litigation proceeds. I do not need access to your cloud storage - indeed it it best if you do not grant me access as, because of the way the human mind works, if I have access to your cloud storage you may start to think - perhaps subconsciously - that when doing each piece of work you ask me to do, I will be considering everything contained in your cloud storage when, in fact, it will be the DCS Pleadings, Orders and Witness Statements and Comments on Statements and Offers cases and documentary evidence cases that I will be turning to when carrying out each piece of work.

Apart from saving costs, a further reason why I use the documents in the DCS Documentary Evidence cases (and not your cloud storage) is that if key documents have been accidentally missed out of the DCS Documentary Evidence cases I am more likely to spot that if that is what I am working from. It is always your responsibility to ensure that the DCS Documentary Evidence cases (together with the DCS Pleadings, Orders and Witness Statements case for certain key litigation documents such as pleadings and court orders which are not actually documentary evidence) contain everything which will be needed at trial, and you should not rely on me happening to spot something missing, but if I work from the DCS documents that has the advantage that I might spot that something is missing if it happens be be something I am looking for as part of the particular piece of work I am doing at that point.       

When asking me to carry out each piece of work as the litigation proceeds, or in answering any questions I may have for you when I come to do each piece of work, there might be some additional document which you wish to show me and if, for example, the document is a recently received letter and it is not yet clear that that document is a relevant evidential document which needs to be used at trial - and so you have not yet loaded the document into the appropriate location in DCS - you might attach the document as a PDF to an email you send to me. Some people, particularly for large documents, find it more convenient to provide a temporary link rather than actually attaching the document to their email, and a temporary link to a specific document in your cloud storage in these circumstances is fine, but please do not grant me general access to your cloud storage. Ensuring that I do not have access to your cloud storage will remind you that it is your responsibility to ensure that the DCS Pleadings, Orders and Witness Statements and Comments on Statements cases are up to date with the key documents they are designed to hold (but no other documents) and that all relevant disclosed documents (but only relevant documents) are in the DCS documentary evidence cases.   

What you should load to DCS       

Most documents you send or receive during the course of the litigation, including both correspondence about the case and formal litigation documents, will be automatically stored in your email system, but you will find that, as litigation proceeds over many months, you will end up with a large number of emails in your email system, so, whenever you receive, or send out, a key formal litigation document, you should store a copy of it in the appropriate location in Caselines Digital Case System (DCS), as described below, so that you can easily locate these important documents when needed as the case proceeds, and not have to search for them in your email system.

A word about terminology: the whole of the litigation is referred to as a "case" and the court will allocate a case number. But the DCS system also uses the word "case" to refer to a collection of documents divided into sections (from which, if necessary, a "bundle" can easily be produced). So at any time there can be several DCS cases for your single court case.

The reason why there will be more than one DCS case during the lifetime of your court case is that the litigation process involves the provision of documents by each side to the other in stages. There are good reasons for this and it is important to provide the correct documents at the correct time but not to provide certain documents prematurely. For example the court will normally order witness statements to be exchanged and although the court does not usually order disclosure of documents by exchange it is good practice to provide a list of documents at the main Disclosure of Documents stage and only provide copies of the documents themselves after the other side's list as been received.

Because the provision of documents is in stages it is convenient to have once main DCS case containing the key documents which have been provided to (and by) the other side, and to store key documents which are not yet due to be provided to the other side in a separate DCS case. Once the stage has been reached where the documents are provided to the other side, the documents are copied from the separate DCS case into the main DCS case and, after a full backup of the separate DCS case has been taken, the separate DCS case is deleted. It is not recommended that you ever provide direct access to the other side to any of your DCS cases but having one main DCS case containing documents which have already been provided, and separate temporary DCS cases for documents which are due to be provided at a later date, helps in keeping mental track of the status of documents at any one time.       

For example, you will be sent by the other party, at the Disclosure of Documents stage, copies of their documentary evidence – e.g. photographs or documents which came into existence in the ordinary course of events in the past such as letters, invoices, written agreements, emails, diaries, logs etc. which are probative of issues in dispute in the litigation. These items of documentary evidence should initially be stored in as separate DCS “case” as should your own documentary evidence which you will be disclosing. But once the Disclosure of Documents stage (or stages as sometimes disclosure in stages is directed) is complete,the documents are copied from the separate DCS cases into the main DCS case and, after a full backup of the two separate DCS cases has been taken, the separate DCS cases are deleted.  

Most documents which have been provided by one side to the other can, in principle, be provided to the court. There are in fact practical reasons why the court does not want to be provided with all the documents but in principle there is no problem with the court seeing them. The exception is what is known as "without prejudice" correspondence. In order to encourage parties, if they choose to, to explore the possibility of an agreed settlement, there is a court rule - in fact two rules - which mean that:-

a) "without prejudice except as to costs" correspondence cannot be shown to the court until after the judge has decided who wins at the final trial. After the judge has decided who wins, "without prejudice except as to costs" correspondence can be shown to the judge and may influence what costs orders the judge then makes (e.g. if a party wins partly and does less well than a "without prejudice except as to costs" offer by the losing party the winning party may be ordered to pay some of the costs of the losing party incurred after the point when the winning party failed to accept the offer).

b) unqualified "without prejudice" correspondence can never be shown to the court (unless, of course a binding settlement is reached in which case there will be no trial, or in certain other very exceptional circumstances)

Because of these special rules, (a) would be stored in a special For Costs Arguments DCS case to ensure that it is not accidentally provided to the court prematurely. This special DCS case would also contain other key documents relating to costs which, though there is no prohibition of providing them to the court before trial, will, in practice, not be relevant until after trial. (b) would not be stored in DCS at all.