Inevitably if your litigation does not resolve through negotiation or come to an abrupt end in some other way, you’re going to need to come to grips with the mandatory exchange of documents required by the Court Rules.
In Queensland, this occurs 28 days after the pleadings are “closed”. Here the process is called disclosure, although you might hear it called discovery as well.
In this simple rundown, we’ll give an overview of your duty of disclosure and point out a few areas where sometimes people come unstuck.
What is Disclosure?
Disclosure is where parties to litigation must exchange documents in their possession or control that a relevant to the issues in the proceeding.
Putting it that way, of course, it sounds simple.
Often it is, and sometimes it is not.
What is a Document?
Apply the broadest possible definition that you can think of to “document”, and you’ll be on the right track.
A document includes the obvious: paperwork, files, emails.
It can also include photographs, recordings and other types of media.
In some cases, it can include databases, source materials and metadata.
If in doubt and it’s a “thing” that you can deliver up to your lawyers to put in a list – it’s probably a document.
Is it In Your Possession or Control?
The idea here is that if you can get the document or readily influence its acquisition, then the document is in your possession or control.
So, for a typical example, bank statements are in your possession or control even if you have not yet downloaded them.
Similarly, your most recent profit and loss statement is in your possession or control, even if you need to ask your accountant to print it out for you.
Now there are some things further afield that might not be in your possession or control. You may not, for example, be required to hunt down a former employee who had a text message on their phone that you have no direct influence over.
But otherwise, if you can get it with a minimum of fuss, then it’s something to give to your lawyers.
What is Relevant?
Something is relevant if it tends to prove or disprove an allegation in the proceeding.
Now, you don’t need to prove or disprove things that are admitted. So, for example, most people can usually agree that a company exists and that someone is its director – these are public records and not normally the subject of a dispute. Therefore, you don’t need to prove that your company exists since it’s a non-issue.
But if it’s not admitted, then you’ll need to prove it.
Now the test of relevance is one that tends to offer a deal of confusion and isn’t one we recommend making without input from your lawyers.
Many litigants, for example, are dismissive of their opponent’s cases. They are inclined to the view that the other side’s position is a baseless smokescreen and, as a result, discard many documents as “irrelevant” within the context of that belief.
The best question to ask is this: if I were my opponent, would I consider the document relevant? If the answer is “not sure” or “yes”, then you should disclose the document.
And yes – you are required to disclose documents that go against your case.
What Happens with All These Documents?
In Queensland, the parties will normally disclose a list of the documents that they hold, and each request copies of the documents they want.
This could be done on paper or electronically. Sometimes in larger or more complex matters a document management process might be agreed early on about how to handle a large number of documents in a way that doesn’t create a massive headache.
Documents that aren’t delivered can’t be used in a trial – so even ignoring the Court Rules, it’s important not to muck it up or forget things.
Common FAQs about Disclosure
- Can my opponent use my documents for a competitive edge? All documents that are disclosed are subject to an implied undertaking that a party won’t use them other than in connection with the proceedings. If you do, expect significant Court sanctions.
- I think they’re hiding something – what can I do? There is a long list of options to get documents. First, you can apply to the Court to compel further documents to be disclosed. You can also seek documents from third parties or individuals through other Court processes.
- Should I sort everything myself or get my lawyers to do it? This is a balancing act. As lawyers we’d prefer you err on the side of giving us the documents, rather than deciding for yourself that it’s irrelevant – it’s safer and ultimately not that costly to you. However, if you simply deliver to us a copy of your entire server hard drive, then expect the disclosure process to cost a lot of money. The best approach is normally a balanced refinement by you first, followed by a rigorous review from your lawyers.
- Can I redact commercially sensitive information? Strictly, no you can’t. This is because of the undertaking in the first FAQ. In practice, however, irrelevant commercial information is regularly redacted and is often not that contentious if it clearly doesn’t make a difference in the proceedings.
It Can Get Complicated
Your lawyers will usually give you advice about the specific scope of your disclosure duties in your proceedings, and can help you with decision making along the way and suggestions about the kinds of documents that should be disclosed.
Usually the process goes fairly smoothly though, and provided everyone is on the same page about the requirements it doesn’t need to cause you too much cost or disruption to your business.
As always, get in touch if you need help with disclosure in your own litigation.