When a commercial dispute heads towards litigation, one of the most important and often underestimated obligations on any party is disclosure. It is often a key stage in the case: documents disclosed by either side can materially strengthen or weaken a claim and sometimes change the parties' assessment of the dispute altogether.
Preserving potentially relevant evidence is therefore essential as soon as a serious dispute arises or litigation is contemplated. Do not wait until proceedings have been issued or formal disclosure begins. Emails can be automatically deleted, employees leave, phones and laptops are replaced and data can disappear through routine IT processes.
It is also a serious mistake to preserve or collect only material which supports your position. Disclosure is not about presenting a carefully selected version of events. Potentially relevant documents may need to be disclosed whether they help or hinder your case, and attempting to shape the documentary record can cause significant problems later.
What is disclosure in commercial litigation?
Disclosure is the process by which parties to a case identify and provide relevant documents to the other side in accordance with the applicable disclosure requirements.
In today's business environment, the overwhelming majority of that material is not held in a filing cabinet. It exists as emails, text and instant messages, cloud files, spreadsheets, calendar entries and other electronic records.
Depending on the dispute, relevant material might include:
emails and attachments;
WhatsApp, Teams, Slack and other messages;
contracts and draft documents;
spreadsheets and databases;
shared drives and cloud storage;
calendar entries;
mobile phones and laptops; and
archived or closed accounts.
The precise scope of disclosure will depend on the case, the court and the disclosure requirements which apply.
Why electronic disclosure is different
Electronic documents bring particular challenges. They are held across multiple systems and devices, they can be deleted, overwritten or lost through routine IT housekeeping, and they often contain hidden information, such as metadata, that can be significant to a case.
Courts expect parties to take proportionate but genuine steps to identify and preserve potentially relevant material once litigation is contemplated. This can include considering whether routine deletion or destruction processes need to be suspended.
Clients may be surprised by two things once a dispute becomes formal: first, how early the need to preserve documents can arise and, second, how much potentially relevant material sits outside the obvious places, such as personal devices, archived accounts and third-party platforms.
Why preserving evidence early matters
The documentary evidence may ultimately be more important than what the parties remember happening.
Commercial disputes often involve conflicting accounts of conversations, negotiations, decisions or contractual arrangements. Contemporaneous emails, messages, drafts and internal documents can provide a much clearer picture of what was happening at the time.
Preservation should therefore be considered as soon as a serious dispute develops.
Potential problems include:
employees leaving and accounts being closed;
emails being automatically deleted;
old mobile phones or laptops being wiped or replaced;
messages disappearing under retention settings; and
archived or cloud data becoming difficult to recover.
Taking early advice can help identify where relevant information may exist and what needs to be done to preserve it.
Do you have to disclose documents which damage your case?
Depending on the disclosure obligations applying to the case, documents may have to be disclosed even where they undermine your position or support the opponent's case.
This is an important point.
Disclosure is not an exercise in identifying the documents which make your case look strongest. Trying to remove, conceal or selectively preserve unhelpful material can create a much more serious problem.
Clients should therefore avoid trying to "tidy up" their documents or communications when a dispute arises.
The appropriate approach is to preserve potentially relevant material and discuss difficult documents openly with your lawyers. Their significance can then be assessed properly and taken into account when deciding how the case should be pursued.
Why disclosure can change a commercial case
Disclosure is not simply a procedural burden.
Documents obtained from your opponent may reveal evidence which was not available when the claim began. Equally, your own documents may expose weaknesses which need to be understood before significant further costs are incurred.
For example, documentary evidence may affect:
what the parties agreed;
how contractual terms were understood in practice;
whether particular representations were made;
why a commercial decision was taken;
whether a party knew about a particular problem;
the cause of a financial loss; or
how that loss should be calculated.
This can affect the merits of the claim, settlement strategy, witness evidence and decisions about how aggressively the litigation should be pursued.
A lesson from a recent multi-claimant case
We recently acted in a Commercial Court claim involving a number of claimants pursuing a single defendant.
Because several individuals were involved, each with their own devices, email accounts and communication histories, the disclosure exercise was considerably more complex than a typical two-party dispute.
Each claimant had to understand not just what documents they held, but where and how their electronic data had been retained, including material on old devices, closed accounts and shared or forwarded correspondence between the group.
We therefore had to establish where potentially relevant material was held, ensure it was properly preserved and determine what needed to be searched and disclosed under the applicable disclosure requirements.
This experience underlined a point that is easy to overlook at the outset of a claim: disclosure is not simply a matter of a client handing over an obvious set of files.
Solicitors need to understand where potentially relevant information may be held, how it has been retained, whether anything may have been deleted or archived and what searches are appropriate and proportionate.
What does electronic disclosure involve in practice?
Where the volume or complexity of electronic data is significant, it is common and often necessary for a specialist e-disclosure provider to be instructed.
These providers use dedicated technology to collect, process, de-duplicate and search large volumes of electronic material in a defensible and auditable way.
Clients are sometimes surprised by the extent of this involvement and the associated cost, but it reflects both the court's expectations and the practical reality of managing electronic evidence properly.
Not every case requires this level of technology. The approach should be proportionate to the dispute and the likely volume and complexity of the data involved.
Why can disclosure become expensive?
In substantial commercial litigation, disclosure can be one of the more expensive stages of the case.
The difficulty is often not simply finding documents. A business may have enormous quantities of electronic information spread across different employees, systems, accounts and devices.
Decisions may therefore be required about which individuals' data should be collected, appropriate date ranges, relevant data sources, searches and how technology can be used to reduce the volume requiring manual review.
Planning the exercise properly can make a significant difference to cost.
Simply collecting everything without considering how it will subsequently be processed and reviewed can create an unnecessarily large and expensive exercise.
Practical steps for clients
Once a serious dispute arises or litigation is contemplated:
preserve potentially relevant electronic material and avoid deleting documents or messages;
consider whether routine deletion or auto-archiving processes need to be suspended;
identify devices, accounts and platforms which may contain relevant data, including personal devices used for business;
tell your solicitor early about how and where electronic communications are stored;
preserve old devices and accounts which may contain relevant evidence; and
expect your solicitor to ask detailed questions about your systems and, in larger matters, potentially recommend an e-disclosure specialist.
Most importantly, do not try to decide which documents are worth preserving according to whether they help your case. Preserve the potentially relevant evidence and allow its legal significance to be assessed properly.
How we can help
Getting disclosure right protects your position, reduces the risk of evidence being lost and can help control one of the most significant costs of substantial commercial litigation.
Our commercial litigation lawyers advise on disclosure as part of the wider strategy of a dispute. We can help identify what needs to be preserved, understand where electronic evidence is held, assess what the documents mean for the strengths and weaknesses of the case and plan a proportionate disclosure exercise.
Where the volume of data justifies it, we can also work with specialist e-disclosure providers to manage the collection, processing and review of electronic material.
Early involvement is important. Disclosure may take place later in the court process, but preserving the evidence and understanding what it may mean for your case should begin much sooner.
