Disclosure - The Reasonable Search when Standard Disclosure is Ordered




Introduction

In court cases, the court invariably orders each party to produce a disclosure list listing all the probative documents which a party has. In the vast majority of cases, a search sufficiently thorough to ensure all probative documents are located is not difficult because there are only so many places they can be. For example if you are a private individual you may keep papers in a filing cabinet or desk drawer. Providing your home is reasonably tidy there may not be many other places papers could be. You might have a "to do" pile of papers out somewhere handy which you need to check through, and you might check behind the sofa, but you know that, for example, there is nothing in the cupboard under the sink or in the garden shed because you go there often and you know no papers are kept there. 

However if you are a large organisation and the issues in dispute in the litigation cut across the categories used in your filing systems, it may be that the only way to ensure that you have found all probative documents is to search through tens of thousands of documents. Until 1999 the courts made no concessions in such cases: the organisation had to conduct a search sufficiently thorough to ensure all probative documents were located even in this would be very expensive and time-consuming to do.


Standard Disclosure and the Reasonable Search

The Civil Procedure Rules (CPR), introduced in 1999, were designed to cut the cost of litigation and one key reform introduced was what is called standard disclosure. When the court, as is now usual, orders standard disclosure, you have to carry out what is called a "reasonable and proportionate search" for probative documents.


CPR 31.7 states:-

(1)     When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

 

(2)    The factors relevant in deciding the reasonableness of a search include the following—

(a)     the number of documents involved;

(b)     the nature and complexity of the proceedings;

(c)     the ease and expense of retrieval of any particular document; and

(d)     the significance of any document which is likely to be located during the search.


(3)     Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.     




In most cases there is no practical difference between a search sufficiently thorough to ensure all probative documents are located, and a reasonable search. It would not be reasonable for the private individual who keeps papers in a filing cabinet or desk drawer to do any less than look in those places, in the "to do" pile of papers and behind the sofa, because such searching is hardly onerous. 

However if you are a large organisation, a reasonable and proportionate search may mean deciding not to search in particular locations which are difficult to search and where there is a low (but not negligible) likelihood of probative documents being found. Here are some examples 

i.)  If you have paper files stored in an off-site location thousands of miles away, containing 10,000 documents, and you have objective reasons (which you can explain) for believing that it is quite unlikely that any of the documents in that location will be significant, then you may judge that a  reasonable search need not include that location at all.

ii.)  For documents on computer, in a folder or database which can be searched using a computer search facility based on e.g. keywords, reference numbers and/or dates, even if there are 10,000 documents in a folder on a computer, and even if you have reason to believe that it is fairly unlikely that any will be significant, it may, nevertheless be reasonable to do a limited number of preliminary computer searches to try to establish whether or not it may be worth searching further. If those preliminary searches produce no hits, or they produce a small number of hits none of which turn out to be probative documents, or if they produce large numbers of hits and, after looking through a number of those hits, you can see that none of them are probative, then you may judge (given that you always thought it fairly unlikely that any of the documents in that folder or database would be significant) that your duty to do a reasonable search does not require you to do any more thorough searching in that particular folder or database.

iii.)  If you are an organisation with 10,000 employees, it may be disproportionate to contact them all asking whether they have any documents - such a manuscript notes - relevant to the issues in the litigation, but it would be reasonable to ask those particular employees who can be identified as having attended meetings relevant to the issues in the litigation (or were otherwise involved) whether they made any personal notes.

Where there are large numbers of documents to be looked at, doing a reasonable and proportionate search may affect how much you read of the documents you come across. It may be reasonable to adopt a practice of not always reading every document, however long, in its entirety. For example, if the document is a two sentence email then clearly, having initially decided to look at it, you will read all of it. If it is a multi-page letter then you may pick out parts from different paragraphs to get the gist of what the letter is talking about and, depending on that, decide whether to read the letter in its entirety or not. If the document is a thick report then you might start at a contents page, introduction or “executive summary” and read enough to help you decide whether it is worth reading further. Once you have found a document which appears to be probative you will want to read it in its entirety, but when you are looking thorugh large numbers of documents searching to find probative documents, how much you read initially may vary.

The Disclosure Statement

In your disclosure statement, you have to confirm that you believe that the extent of the search you have carried out has been reasonable in all the circumstances and you are required to draw attention to any particular limitations you imposed on the extent of the search (CPR PD 31A 4.2). (i.), (ii.) and (iii.) above are examples of particular limitations - i.e. places you made a decision not to search for proportionality reasons rather than because you were completely sure there was nothing there - which would be mentioned in the disclosure statement.



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 November 2016. Disclaimer