Archive for February, 2012

Stop and think before you send!

The Civil Procedure Rules of England and Wales (‘CPR’) require a party to litigation to disclose to the court and other parties documents which are or have been in its possession and upon which the party relies, which adversely affects its case or the case of another or which supports another party’s case.  Once litigation is contemplated, the need to preserve disclosable documents arises.  Some documents are, however, privileged from inspection by another party (e.g. they contain a lawyer’s legal advice to his client or are correctly marked ‘ without prejudice’).  But, what amounts to ‘a document’?

Part 31 of the CPR says a document is anything in which information of any description is recorded.  It reminds the reader this is a wide definition which extends to, for instance, electronic documents and includes e-mails, word processed documents and databases stored on servers and back-up systems – even electronic documents which have been ‘deleted’.  Practice Direction 31B (‘PD 31B’) contains additional provisions relating to disclosure of electronic documents in cases allocated by the courts to the normal, multi-track procedure.  PD 31B reminds legal advisers that the documents disclosed should be managed efficiently to minimise costs and that any document management system utilized should be efficient and effective.  Electronic disclosure should enable the receiving party to have the same ability to access, search, review and display the documents as the party making the disclosure.  Disclosure of electronic documents which are of no relevance to the proceedings may place an excessive burden in time and cost on the party to whom disclosure is given.

So, whilst considerable care and attention is paid to drafting ‘hard copy’ documents, e-mails are often dispatched in the heat of the moment.  These are ‘documents’ too and if you would not want a judge in a case to see them, do not press the ‘send’ button!

Contact Hatherleigh Training if you wish to hear more.