A very interesting article by Rhys Novak at Charles Russell Speechlys looking at the recent Square Global Limited v Julien Leonard  EWHC 1008 (QB) case where there were issues over disclosure and particularly that Mr. Leonard had only disclosed three emails between him and a rival firm, Market Securities, while failing to include any of the associated “important attachments.”
There is always pressure for clients to self-collect and self-select documents based on arguments of cost, time and knowledge. However, unless this is undertaken in a controlled manner, then the risks of altering data, missing relevant documents or creating problems down the road are vastly increased.
This is true both of how the documents are collected and processed; but also how they are reviewed and decisions made. In this case, the judge stated: "The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance – or even potential relevance – for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable."
Regardless of the case or situation, it is important to focus on these aspects of a case to ensure that problems do not arise further down the road. This is even more relevant in the current climate where travel restrictions and social distancing measures make things more complicated.
However, there are generally solutions to these challenges, be it with remote collections, collection kits or utilising Cloud technologies. This is something that we have been executing with great success over the past weeks and months, as Rhys says: "Electronic disclosure providers and forensic IT professionals are well-versed in “imaging” electronic devices and email accounts “down the pipes” through internet connections."
If you would like to learn more, please feel free to reach out to me!
It should also be borne in mind that the Disclosure Pilot Scheme will apply to many significant cases now. The pilot includes more prescriptive detail regarding disclosure duties (of both parties and their legal advisers), expressly recording legal representatives’ duties including that they must take “reasonable steps to advise and assist the party to comply with its Disclosure Duties” (PD 51U.3.2(2)). While it seems obvious that a client should not self-select documents for disclosure (given the temptation of some clients perhaps (even subliminally) not to flag as relevant documents harmful to their case and, particularly in complex cases, concerns surrounding the ability of clients to digest all the nuances of relevance), this case serves as a welcome and timely reminder of the duties on solicitors to do all they can to conduct the review themselves.