Disclosure - Searching for Probative Documents

Searching for documents can be compulsory or voluntary. When you are voluntarily searching for documents which you hope might help your case, how much time you spend looking depends on how important the legal proceedings are to you. If the amount of money at stake in the case (including legal costs which the loser may be ordered to pay) is, from your point of view, relatively modest, you may decide to limit your voluntary searching quite considerably. On the other hand if the case is very important to you, you will want to make more time - even if you are very busy - to look further afield. Ultimately it is your choice if it is a voluntary search.

If you are searching voluntarily it is up to you how you go about it. You do not have to use any particular methodology though you might want to particularly if there are a large number of documents.

However when you are searching compulsorily - because the court or tribunal has ordered you to - the court/tribunal will specify the extent of the searches which you are required to carry out.

Searching means collection and review

Searching can be thought of as collecting a set of documents and then reviewing them - i.e. reading them - to identify which documents are ones you want to rely on and/or meet the court-tribunal specified criteria for disclosure.

When the court or tribunal specifies the extent of the search required it may authorise you to limit, using various methods, the documents you collect, thus reducing how long it will take you to review all the document you have collected to see which meet the court/tribunal-specified criteria for disclosure.

Collection of documents

Some cases are such that you are sure that you can easily put your hands on all documents which could possibly be relevant. For example if a stranger has recently driven into, and damaged, your recently built garden wall, you may have quotes and invoices for the original building of the wall, and then for its repair, photographs of the wall before and after the damage, and a few letters received and sent out, and you may actually remember and be sure that that is all there is and it may already be in a separate neat pile on your desk. But in most cases you will need to look for and collect together, potentially relevant documents. At its simplest, collection of documents might consist in going to the two drawers, which are the only place where you keep all your papers at home, and placing all the papers in a pile on your desk ready to review. But in many cases, particularly if you are a businesses, there will be a large number of hardcopy documents under your control kept in some kind of filing system and you will not want to extract all the individual papers and put them in a huge pile. Rather you want to keep them in their original folders. If the folders which may potentially contain relevant documents are portable and there are not that many of them you might put them on your desk ready to review, but often it is more convenient to leave the folders in situ and just make a list of all the folders in question so that they can be retrieved and the documents in them reviewed one folder at a time. So in that case the process of "collection" of hardcopy documents to be looked through simply consists in making a list of all those physical document folders which may potentially contain relevant documents.

In some cases you might include some preliminary manual checking of documents within the collection process to decide whether they should be 'culled' at that point before you come to the review stage, not doing anything like a full read or evaluation of documents but just checking some particular data item such as date. For example if the folders in which hardcopy correspondence is stored are not organised by a narrow date range such as a month, you might want to go through the folders you have selected looking at the date of each letter and only selecting the document to go into the review stage if its date comes within the relevant date range for your search. This is the manual equivalent of selecting emails on a computer by date range.

When it comes to electronic documents, collection involves first identifying all the data sources under your control such as phones, laptops, desktop computers, servers, cloud based systems including email, backup systems etc. which may potentially contain relevant documents and then some degree of culling of the data so that the number of documents which go through to the review stage is such that it is feasible to then individually review each of those documents. It may be apparent that certain folders have been specifically set up to contain, and do contain, certain types of documents which are relevant to the case and which all need to be reviewed, but, for the rest of the data in the data source, various computer facilities - such as keyword searches and/or date range searches may be used to cull the data. Getting the keywords right for a keyword search can take a bit of trial an error - you might look at a sample of "hits" to see whether they are the kind of documents you expected to collect and, if they are, whether the contents of some of those hits gives you a better idea of other or additional keywords you could use.

The trade offs

For each document location (e.g. folder) where documents which you have collected are to be found, you may have some sense of the likelihood of it containing significant probative documents and this may influence your use of culling techniques. For folders which seem to have been specifically set up to contain, and do contain, certain types of documents which are relevant to the case, certainly if the number of documents in them is not large, you may think it wise not to cull them at all but to put all of them through to the review phase. On the other hand if there are locations, of sets of locations, which are less likely to contain probative documents or, at least, less likely to contain significant probative documents (some probative documents being more important than others) culling techniques are likely to be used to at least some degree particularly if the set of documents there is very large in number. For each document location or set of document locations there is a trade-off between using more restrictive search criteria at the collection stage, which reduces the time which has to be spent at the review stage but may mean some significant probative documents are missed, or using less restrictive search criteria at the collection stage, which increases the time taken at the review stage because more documents have to be read through to determine whether or not they are documents meeting the criteria for disclosure. 

In deciding on data sources to be searched, and on what culling methods may be applied to those sources used, or to locations within those sources, typical factors which may have an influence on the decision include:-
  • The nature and complexity of the issues in the proceedings
  • The importance of the case
  • The likelihood of documents existing with significant probative value in supporting or undermining a party’s case
  • The number of documents involved
  • The ease and expense of retrieval of any particular documents

Voluntary searching

If you are searching voluntarily it is up to you how you go about it, and whilst it can be helpful to think in terms of collection and review, you do not have to be rigid about the difference between culling as part of collection, and the process of review. For example when you are reviewing a large document such as a report you might decide not to read further if, after looking at the table of contents and executive summary or introductory paragraphs, it appears unlikely that the document will be relevant, thus blurring the line between collection/culling and review.

Compulsory searching where the court/tribunal directs the scope of the search 

When, however, you are searching compulsorily - because the court or tribunal has ordered you to do so - the court's/tribunal's order will need to be precise so that you know what you have to do and everyone knows that when you certify that you have done it it is clear what steps have been taken. .

The court/tribunal may, after hearing what each party has to say about the costs or other reasons for limiting the search, and reading any disclosure proposal reports which the parties may have been ordered to produce, specify in advance what data sources do and do not have to be searched, and what search methods are to be employed - in particular what keywords are to be used for data culling at the collection stage. In this case you have to follow the court's/tribunal's order as to what is to be done at the collection stage (including culling) and then fully read every document which comes through for review - you cannot introduce further culling which the court has not ordered by, for example, not reading report documents which have come through to the review stage if the table of contents of the report looks unpromising if the court/tribunal has not approved this approach.   

There is an FAQ about compulsory orders here.


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This page was lasted updated in February 2020. Disclaimer