Boardroom Briefing

Electronic Documents

Winning disputes is about preparation. If you want to increase your chances of success in any dispute, that preparation needs to start well before you hand the problem to your lawyers.

Every year, more business is transacted electronically, and more of our communications are by email.  By its very “virtual” nature, electronic documentation mushrooms far more quickly than traditional paper records.  It also carries its own signature, known as metadata, which shows when it was created, by whom, modifications, deletion and so on.  It can reveal much more than a paper record.

Electronic documents also seem much more disposable.  It’s easy to write an email without giving much thought to it.  But careless words tapped out briefly on a computer can result in courtroom defeat, perhaps years later.

Disclosure is a key part of the litigation process.  Each side must disclose to the other documents that might be relevant to the issues, whether they help or harm your case.  This includes emails and other soft copy documents.  Depending on the size of the dispute, disclosure can be a difficult and time-consuming job.  New rules have recently been introduced which potentially widen your obligation to disclose electronic documents.

Certainly your lawyers will have to review the emails and other electronic documents of anyone who might know about the background to the case.  In the simplest case, that might mean asking you or your IT manager to identify emails you and your colleagues have sent or received, and any other documents which might touch upon the issues.  In other cases, it might be necessary to appoint an independent forensic IT consultant. 

Whatever the scope of the exercise, it could greatly inconvenience you and your staff.  If done badly, it could result in you losing the case.  Because the obligation to disclose is so wide, you need to think about the emails and other documents you create once you think a dispute might arise.  You also need to make sure you don’t do anything which could limit your ability to give disclosure, as that might result in criticism from the court.

Some tips:

• Never commit anything to email (or other document) unless you would be happy to answer questions on it in court.  Encourage your staff to follow your lead.
• Be organised.  Make sure relevant emails (including sent items) are saved to a specific folder which can easily be accessed.
• Where possible, address communications about any dispute to your lawyer (whether in-house or external), copying in others as necessary.  Identify such communications as “privileged”. Your lawyer might be able to justify non-disclosure on grounds of legal advice privilege.
• Once you know a dispute might arise, make sure you do not delete or amend any relevant emails or other documents. Suspend routine document destruction policies.  The court might otherwise be critical.

Following these steps when disputes or disagreements arise will help you to minimise the risks faced when giving disclosure.  Once the dispute threatens to result in litigation, you’ll need guidance from your lawyers on the best way to handle disclosure.

Always remember that preparation wins cases.