Disclosure can often be the key phase in legal proceedings. Up to this point one or more of the parties may be in the dark, unclear of the true merits of their claim or defence, but disclosure can serve to clarify who has the better of the arguments and where the balance of power lies for settlement purposes.
Disclosure regimes vary across the world. Generally speaking the United States is considered to have the widest of all disclosure obligations and the parties there must disclose not just relevant information but also information that may lead to relevant material. At the other end of the spectrum are the civil law jurisdictions such as Germany and Dubai where there is no real culture of document disclosure and the parties generally need only disclose documents that support their own claims.
England sits broadly mid-way between these two regimes. Disclosure is firmly linked to the issues as contained in the parties’ pleadings (Particulars of Claim, Defence etc). Each party must disclose the following: (i) documents on which they rely; (ii) documents which adversely affect their case; (iii) documents which adversely affect another party’s case; and (iv) documents which support another party’s case.
Disclosure is strictly enforced by the English courts and the court will not smile on parties who delete documents or who do not carry out a proper search. The court has the power to draw adverse inferences from a party’s failure to produce documents, or even, in the most serious cases, to strike out their claim.
Parties are often reluctant to disclose confidential or commercially sensitive documentation, particularly where new technology is involved or the dispute is between business rivals. The rules are clear that confidential/ sensitive material must be disclosed if it is relevant to the pleaded issues, but in practice it is often possible to redact sensitive portions of documents – for example pricing information in a contract where that is not relevant to the dispute. In some circumstances it may even be possible to make certain documents for “lawyers’ eyes only”.
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