The Court has the power to order parties to provide each other with internal information and documents which are relevant to the case. This is often a very significant stage in the litigation as claimants or defendants who have been holding out in the hope that they will not have to reveal a game changing document may have their hopes smashed.
As so much communication is now electronic, there is specialist software “eDisclosure” which enables large amounts of emails and computer files to be indexed, searched and read by the lawyers. In large cases, disclosure can extend to hundreds of thousands of documents. Lawyers sometimes try to bury bad news amongst so much information that it is missed.
The legal teams will often argue about the disclosure process. Claimants typically want more information than they strictly need (often referred to as a “fishing exercise”) and Defendants typically want to withhold as much as they can. A Case Management Conference before the judge may be needed to resolve arguments between the legal teams.
As with everything during the litigation process, the Court must consider the proportionality of any request. This means that if it would cost either party anywhere near the amount of the claim to provide the information, it may well not be granted.
The aim is that the parties are provided with each other’s relevant documents and can reassess the strengths and weaknesses of their case. It is not uncommon for settlement discussions to speed up after disclosure once the “cards are on the table”.
But while the lawyers are heavily engaged in this process, it can look from the outside like nothing is happening. That couldn’t be further from the reality!
TYPICAL TIMESCALE – THREE MONTHS
Step 7: Witness Statements