I read this article from Alasdair McDowell and Olivia Bishop from Stevens & Bolton with interest. It covers the theme of classic eDiscovery mistakes.
The authors explain that disclosure and witness evidence are often the difference between success and failure in litigation - and I couldn’t agree more with that.
In fact, I wholeheartedly believe that disclosure is crucial to a fair trial.
The importance of documents and data during the disclosure process cannot be disputed, however, just the sheer amount of electronic material that is now generated has spiralled and can often be seen as all encompassing. Context is of course key, and this means that all data must be evaluated carefully and robustly.
A robust and defensible collection process, done in a forensically sound way is therefore essential. And on top of this, and before moving forward, both parties should seek to reach an agreement with one another on the appropriate approach taken. Agreeing disclosure protocols in advance, i.e., by saying to the other side ‘this is how I will disclose’, ‘this is the format”, and ‘this is the metadata’, will avoid further issues and delays down the line.
We have more on the collection process and the importance of disclosure in our recent DPS paper – linked here.
The overarching theme of these cases is a simple one: evidence, be it documentary or witness evidence, must be dealt with properly. Disclosure and witness evidence can be expensive, but the court will determine a case based on the evidence before it, so litigants should see it as money well spent.