An interesting article from the team at Herbert Smith Freehills looking at the recent case: Castle Water Ltd v Thames Water Utilities Ltd  EWHC 1374 (TCC) and what it means in respect to the continued obligation to disclose known adverse documents.
In this case there was a distinction between having to search for these documents and having to check with relevant people whether they were likely to exist. This is replacing an automated search with one that relies on human memory.
I do not want to propose some ongoing requirement to continually search across entire population of documents infinitude. But I would imagine on most cases, with documents loaded onto a document management system, that people are already searching for these documents as part of their ongoing process. I would also imagine that this would extend to when there are fundamental changes to the case. So I would expect a check to be a search in many cases!
There is also an interesting reminder in this case that the Model C form of disclosure must be focused on the Issues for Disclosure and ensure that they are not so broad as to effectively become a Model D search.
Dealing with these topics is something we regularly tackle and assist clients on - please let me know if you would like to know more!
In a recent decision the court has clarified that parties are required to undertake reasonable and proportionate checks to see if they have or have had “known adverse documents” in order to fulfil the continuing obligation to disclose such documents under the Disclosure Pilot Scheme... A distinction was drawn between “search” and “check”. While no search for known adverse documents is required, each party should ensure that it has checked with the relevant people...within its organisation whether they are aware of any documents which may be adverse given the issues in dispute... Parties and their advisers should be alive to any change in circumstance, such as a material shift in either party’s case or introduction of additional issues, that may require this check to be carried out again, or with different people.