Disclosure And Inspection Flashcards
What are the types of disclosure orders a court can make?
The types of disclosure orders include: no disclosure, reliance/specific disclosure, issue by issue, reasonably advance/reasonably damages, standard disclosure, and any order.
What is standard disclosure?
Standard disclosure requires a party to disclose documents on which they rely, documents that adversely affect their own case or another party’s case, and documents required by a relevant practice direction.
What is a disclosure report?
A disclosure report briefly explains relevant documents that exist, their location, how electronic documents are stored, estimated costs of standard disclosure, and which disclosure directions are sought.
What must parties do in multi-track cases regarding disclosure?
Parties must complete a disclosure report at least 14 days before the first case management conference and discuss a draft disclosure order at least 7 days before the conference.
What is the continuing obligation of disclosure?
The duty of disclosure continues until proceedings are concluded, requiring parties to disclose documents created after the original disclosure if they fall within the obligations.
What is the significance of privilege in disclosure?
Privilege may allow a party to withhold a document from inspection, but the existence of the privileged document must still be disclosed.
What does ‘reasonable search’ mean in the context of disclosure?
A reasonable search depends on the number of documents, the nature and complexity of the proceedings, the difficulty or expense of retrieval, and the significance of any likely found documents.
What is the purpose of a disclosure statement?
The disclosure statement certifies the extent of the search made, the understanding of the duty to disclose, and that the duty has been carried out to the best of the party’s knowledge.
What are the conditions under which inspection of disclosed documents can be refused?
Inspection can be refused if the document is no longer in control, if allowing inspection would be disproportionate, or if there is a right or duty to withhold inspection due to privilege.
What is redaction in the context of document disclosure?
Redaction involves blanking out parts of a document to protect confidential information, although the CPR does not explicitly provide for it.
What is the definition of a document under CPR 31.4?
A document is defined very broadly and includes digital recordings, emails, photographs, text messages, voicemails, and metadata.
What is redaction?
Redaction means blanking out parts of a document (digitally or traditionally) to preserve the original unmarked document.
Is redaction permitted for confidential information?
Confidentiality/commercial sensitivity alone does not justify redaction of documents that are to be inspected.
When can redaction be possible?
Redaction may be possible if: 1) there is a clear and distinct part of a document that attracts privilege, or 2) the information is totally irrelevant to the dispute.
What is an example of redaction related to privilege?
An accountant notes advice from a solicitor on a customer complaint letter. The note is privileged and should be redacted during inspection of the letter.
Example: An accountant receives a letter of complaint from a customer. He telephones his solicitor to take advice in relation to the complaint, and makes a note of the advice on the letter from the customer.
What is waiver of privilege?
Waiver of privilege occurs when a party allows inspection of a privileged document, believing it helps their case.
What happens if a party waives privilege in part of a document?
Waiving privilege in part of a wholly-privileged document leads to waiver of privilege over the remainder, unless it deals with entirely different subject matter.
What is the principle of ‘once privileged, always privileged’?
‘Once privileged, always privileged’ means that if something is privileged in one set of proceedings, it remains privileged in all proceedings unless lost through waiver.
Who has the burden of proof regarding privilege?
The burden of proof is on the party claiming privilege to establish it.
What documents can be inspected in relation to statements of case?
A party can inspect documents referred to in statements of case, witness statements, and affidavits, subject to privilege rules.
What is the procedure for inspecting documents?
A party must send a written notice to inspect documents, and the other side must allow inspection within seven days of receipt.
What are the conditions under which a party has the right to inspect a document?
A party has the right to inspect a disclosed document unless: 1) it is no longer in the disclosing party’s control, 2) allowing inspection would be disproportionate, or 3) the document is privileged.
How to tackle questions on privilege
- Identify the date of the breach
- Identify who its from and who its to
- Privilege? - yes - waive?
No - redaction?
