Disclosure and Inspection Flashcards
What is a Document?
Any item that records information.
This can include:
- Emails.
- Metadata.
- Voicemails.
- Photographs.
- Text Messages.
- Digital Recordings.
What is the Source of Disclosure Obligations?
Court Orders, which are usually made at:
- Allocation;
- The CMC; or
- Upon Application.
Which Documents is the Court likeliest to Order to be Disclosed?
Those necessary to deal with the Case justly and at proportionate cost relative to the Case’s value and complexity.
What are the Six Types of Disclosure Order?
Dispensing with Disclosure:
- No Disclosure is necessary.
Limited Disclosure:
- A Party need only Disclose the Documents its Case relies upon and may request specific Documents be Disclosed.
Issue-by-Issue Disclosure:
- Disclosure is limited to certain Issues, where practical.
Reasonable Disclosure:
- A Party must disclose any Documents that may reasonably:
- Advance its Case;
- Damage its Counterparty’s case; or
- Lead to inquiries that have such an effect.
Standard Disclosure:
- A Party must disclose any Documents that:
- Advance its Case;
- Damage its Counterparty’s case; or
- The Law requires be Disclosed.
Specific Disclosure:
- A Party must disclose any Documents that the Court has specifically compelled it to Disclose.
Specific Inspection:
- A Party must permit Inspection any Documents that the Court has specifically compelled it to Disclose.
A Party’s Disclosure Obligations are limited to those Documents it controls or used to control.
The Court has ultimate discretion to tailor any of these Orders to the given Case, e.g. by segmenting Disclosure into stages.
What constitutes ‘Control’ of a Document?
- Right to possession of the Document.
- Physical possession of the Document.
- Right to inspect or take copies of the Document.
Which Categories of Documents must be Disclosed under Standard Disclosure?
Any Documents revealed by a Reasonable Search that:
- Support the Party’s Case.
- Support another’s Case.
- Adversely affect the Party’s Case.
- Adversely affect another’s Case.
- The Law requires be Disclosed.
What constitutes a ‘Reasonable Search’?
A reasonable, proportionate effort to Identify and Disclose Documents within the Order’s scope, factoring in:
- The Costs incurrable.
- The number of Documents involved.
- The nature and complexity of the Case.
- The difficulty of securing certain Documents.
- The importance of the Documents likely to be found.
What is a Disclosure List?
The product of Standard Disclosure, a report outlining:
- Part 1: Documents in the Party’s control that are open to Inspection.
- Part 2: Documents in the Party’s control that are not open to Inspection (Privileged).
- Part 3: Documents previously in the Party’s control but that are no longer available.
Privileged Documents need not be listed individually. Instead, they can described categorically.
What is a Disclosure Statement?
A statement accompanying the Disclosure List that:
- Describes the search’s extent (including limitations).
- Certifies the Party understands its Disclosure Duties.
- Certifies the Party has fulfilled its Disclosure Duties to the best of its knowledge.
Solicitors must ensure the person making the Statement fully understands their Disclosure Duties.
What is the Right of Inspection?
The right to examine Documents in the Disclosure List or referred to in a Statement of Case, Witness Statement, or Expert Report unless:
- The Document(s) is Privileged.
- The Document(s) is no longer in the Disclosing Party’s control.
- Inspection would incur disproportionate time, effort, and cost.
Refusal of Inspection on grounds of Disproportionality must be explicitly stated in the Disclosure Statement, with a description of which categories are refused and an explanation as to why.
Referring to a Document in the places above does not automatically waive privilege.
What is the Procedure for Inspection?
Requesting Inspection:
- The Inspecting Party must send written Notice to the Disclosing Party, specifying the Documents it wishes to Inspect.
Timeframe for Inspection:
- The Disclosing Party must allow Inspection within 7 days of Notice.
- The court may vary this time limit through directions if necessary.
Requesting Copies:
- The Inspecting Party can request Copies of Documents, provided they undertake to pay reasonable costs.
- The Disclosing Party must provide Copies within 7 days of request.
Refusal to Permit Inspection:
- The Disclosing Party cannot rely on withheld Documents without Court permission unless it has a valid reason for withholding.
What are the Types of Privilege?
Legal Advice Privilege:
- Protects confidential communications between Clients and Lawyers made predominantly to give or receive legal advice.
- This only applies to direct communications, ongoing, repeated, or otherwise, and must remain confidential.
- For In-House Lawyers, this only bites if they are acting in a legal capacity, i.e. advising on legal issues.
Litigation Privilege:
- Protects confidential communications between Clients, Lawyers, and Third Parties made predominantly to prepare for existing or reasonably anticipated litigation.
- If its Purpose is unclear, ask the Document’s Commissioner, not its Author.
Without Prejudice Privilege:
- Applies to communications between Parties attempting to Settle a Dispute, regardless of the label “Without Prejudice.”
- Such communications cannot be used as evidence if negotiations fail, as they are considered part of a genuine Settlement effort.
The status of ‘Privileged’ can be disputed in Court.
Information added by the Client, such as personal opinions, is not protected under Legal Advice Privilege. If sufficiently significant, Privilege may be Waived.
What is Purpose of Redaction?
To conceal information in a Disclosable Document that is either irrelevant, Privileged, or confidential.
The Redcated Version is listed in Part 1 of the Disclosure List. The Unredcated Version is listed in Part 2, where Inspection is refused.
When is Privilege Waived?
When a Party:
- Deliberately allows Inspection of a Privileged Document, which Waives Privilege to the Document.
- Explicitly references a Privileged Document in a Court Document, which Waives Privilege to the whole Class.
Is Partial Waiver Possible?
- Yes, and consequently, the whole Document will be Waived;
- Unless the Waived and Unwaived parts deal with entirely different subjects.
The Exception is unreliable.
Is Waiver across Multiple Documents possible?
Yes, especially if those Documents deal with the same subject matter.
When does Privilege expire?
Never, even after the Litigation concludes.
