Disclosure duties and audit – not as easy as some may think

We are a bit short of useful or interesting judgments about disclosure in England and Wales at the moment. We have the sound of distant battles (a phone dropped into the sea, a solicitor urging clients to “Burn it” when told of a potentially disclosable source) but, unless I have missed them, we have not had formal reports of outcomes of these cases (the WAGs judgment is due today, I now gather).

The Law Society Gazette brings us an account of an argument about “oversight” and lack of disclosure preparation for a trial which should have started in June. The account is only about the arguments and accusations deployed at a hearing about the allegedly inadequate disclosure, and beyond the fact that the defects do indeed seem to have been responsible for a delayed trial, it is hard to assess the degree of culpability involved. The court was told “..it is apparent that neither Fieldfisher nor MGA properly appreciate what full compliance with their disclosure obligations requires, with MGA’s IT team continuing to make basic errors and Fieldfisher continuing to maintain that the re-harvest process is robust.’

It does not seem to be suggested that the documents not (yet) disclosed are of the kind which will swing the case one way or another, and I doubt that we will hear more of this – there will be some costs consequences, no doubt, as well as the delay itself, but nothing which changes the outcome.

Stepping aside from this particular case (about which I do not know enough to comment), it is worth reminding ourselves that, so far as the court is concerned, the solicitors are responsible for compliance with the disclosure rules, whatever disagreement they may have with their clients about disclosure.

If this case (as reported so far, at least) tells us nothing new, it is an opportunity to look at some basic law, both from old cases and from new rules without, I should stress, implying that the solicitors in this case have broken any of them.

In Woods v Martins Bank Ltd [1959], Salmon J said “It cannot be too clearly understood that solicitors owe a duty to the court, as officers of the court, to make sure, as far as possible, that no relevant documents have been omitted from their client’s list”.

In Rockwell Machine Tool Co. Ltd v EP Barrus (Concessionaires) Ltd [1968], Megarry J said:

In preparing for trial solicitors bear a great responsibility and a heavy burden. Not the least of these burdens is that of discovery… Many litigants… have little appreciation of the scope of discovery and the duty of making full disclosure…. It seems to me necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation…not only the duty of discovery and its width but also the importance of not destroying documents which might by possibility have to be disclosed. This burden extends, in my judgement, to taking steps to ensure that in any corporate organisation knowledge of this burden is passed on to any who may be affected by it.

The modern rules are much more specific about the duties of legal representatives, with a long passage beginning at paragraph 3.2 of Practice Direction 51U, which is perhaps worth setting out in full:

3.2 Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court—

(1) to take reasonable steps to preserve documents within their control that may be relevant to any issue in the proceedings;

(2) to take reasonable steps to advise and assist the party to comply with its Disclosure Duties;

(3) to liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties where they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through the use of technology;

(4) to act honestly in relation to the process of giving disclosure and reviewing documents disclosed by the other party; and

(5) to undertake a review to satisfy themselves that any claim by the party to privilege from disclosing a document is properly made and the reason for the claim to privilege is sufficiently explained.

I first heard of this case (before the hearing) through a question about audit – whether there is any obligation in the UK to audit the disclosure process. I take “audit” to mean something different from both “supervision” and from the checking mechanisms built into many disclosure / discovery software applications.

Wheater & Raffin at 1.82 of Electronic Disclosure Law and Practice, say “An eDisclosure process must be capable of explanation; the steps taken and the technology used as part of the search must therefore be auditable”. In practical terms, this means that someone on the disclosing side must be able to say what was done and not done, and why.

If your reaction is to say “Of course – doesn’t that happen anyway?”, you may inhabit some kind of perfect world in which there is time for everything, and infinite fees. In the real world, compliance with the rules is rather harder than may appear to those who watch from the sidelines.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere

Written by Chris Dale

eDisclosure Information Project. I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere

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