July 2024

James Perry’s top 10 tips for an effective disclosure exercise

Disclosure is probably the most important stage of any civil case. Here, James Perry sets out his top tips for conducting a decent disclosure exercise.
TIP 1 - Understand the Importance of Disclosure:
Firstly, as a client, understand the importance of disclosure. The disclosing of documents is a critical part of a dispute. The success or failure of a claim often hinges on what you disclose so a good search is of paramount importance. Getting it right in one-sitting is also the sort of optics you want for you case. Proper disclosure ensures transparency and credibility during the legal proceedings. There is nothing worse than pulling out a document late that you should have found at the start. That’s the kind of look you want to avoid!
TIP 2 - Prepare Early:
It is never too early to start the task of disclosing documents and you need to understand that preserving documents from the very outset is important so make sure nothing is about to be destroyed. Waiting until the last minute to deal with disclosure can also lead to inefficiencies and mistakes so think about it from the outset, think about how you are going to do it and stick to your plan. Map out your process, make sure everyone in the business that needs to know about it is sent a copy, and don’t deviate from it unless you have to. There is nothing worse than explaining to a Court a piecemeal disclosure exercise which lacked logic so make sure you identify relevant documents properly and organise them systematically.
TIP 3 - Know the Rules:
Do not leave the rules to your lawyers. Get a basic understanding of them because it will help with the exercise. Familiarise yourself with Part 31 of the Civil Procedure Rules (CPR) and Practice Directions on disclosure and ask if you don’t understand something. We don’t bite!
TIP 4 - Collaborate, collaborate, collaborate:
Work closely with your legal team. They can guide you through the process and help you comply with the rules. Do not leave it to them. Help them by organising things for them or don’t complain about the end at the end. It will be far more expensive. Make sure you seek advice on what documents to disclose and how to handle privileged information.
TIP 5 - Maintain a Document Trail:
Keep tight records of your disclosure process. Document the steps you’ve taken, searches conducted, and decisions made. Set out how you found something, particularly if it is the key piece of evidence you needed for your case. This helps you to demonstrate diligence and compliance if challenged later.
TIP 6 - Be Thorough:
Conduct a comprehensive search for relevant documents. This includes electronic records, emails, contracts, and correspondence. Don’t overlook minor details; even seemingly insignificant documents may be relevant. Have a method in place for cracking the dreaded email chains. How are you going to handle email chains to ensure the story makes sense? Email chains are back-to-front. What is your plan to handle that problem? This is where the most mistakes happen if you don’t master this problem.
TIP 7 - Consider Privilege and Redaction:
Try to have at least a working understanding of legal privilege (e.g., legal advice privilege, litigation privilege). Some documents may be exempt from disclosure and you may be able to redact sensitive or irrelevant information to protect confidentiality. This is the part when your lawyer comes in very handy!
TIP 8 - Use Technology Wisely:
Use e-discovery tools and software to manage large volumes of data efficiently. Consider using keyword searches, filters, and categorisation. When you are buying in software make sure your procurement team assess how easy it is to search and extract data should the software form a part of a disclosure exercise. There is nothing more frustrating than taking screenshots because the data is too tightly locked into the software.
TIP 9 - Be Transparent with the Other Party:

Yes, they are perceived as the enemy but if you communicate openly about the disclosure process you are less likely to end up at Court arguing over disclosure points and spending even more money on the exercise. Share relevant information promptly and make the process of disclosure smooth even if you are at loggerheads with each other regarding the dispute. It benefits everyone if you conduct a disclosure exercise in this way.
TIP 10 - Review and Update:

Do not think that when the list is done, you’re done. Regularly review your disclosure list. Update it as new documents become available or you spot new searches that need to be conducted. Always be prepared to justify your decisions during the case and recognise that being quick to report a change in circumstances is going to put you in the best light.
Remember, proper disclosure contributes to a fair and efficient legal process. It also gives you the best possible chance of settling your dispute before you get to Trial so make it count.
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