What will your disclosure conduct look like under the judicial spotlight?

Sometimes you look at a judgment and marvel that any human has got his or her head round the complexity of the subject matter, the law and the procedure involved in it. One such is Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd which involved defects in an industrial process, complex contract terms, conflicting expert evidence, detailed allegations about breaches and defective work, arguments about repudiation and quantification of the cost of remedying defects; in addition, there were multiple procedural failures, disclosure defects, multiple changes of counsel and….well, you name it, this case had it.

Gordon Exall of the Civil Litigation Brief has already written four posts about it. The first was headed Deficiencies in disclosure: reading this judgment is not like watching paint dry. He is right – I would sit watching paint dry, grass grow or any similar process rather than read this judgment again, still less try to summarise it.

I don’t think you need to read it either if your primary interest is in disclosure. I don’t think you even need to read too closely the parts directly relating to disclosure: they did not involve analysis of any particular rule whose close interpretation will help you; they did not obviously involve a failure of eDiscovery technology; there may or may not have been bad faith involved here – it is hard to tell. It just all went wrong.

I am going to cheat, and I suggest that you do too. In his usual helpful style, Gordon Exall has extracted some direct quotations from the judgment. All I am going to do is pick out some of those which relate directly to disclosure and leave you to conclude that you will do everything in your power to make sure that your name, whether you are the litigating client, an individual witness, or the solicitor or barrister – does not turn up in the law reports in a similar position. I must stress, as the judge and Gordon Exall did, that none of the blame fell on the claimant’s counsel involved in the trial

An aside – the intensity of examination at trial

An aside before I give you the quotations: I am often critical of the view, particularly as it is played out in the US, that discovery / disclosure is managed solely with a view to trial – so few matters ever go to trial that this seems a pointless target compared with, say, the prompt identification of strengths and weaknesses so that you can get quickly to a businesslike settlement.

It is, however, sometimes worth asking yourself “What will this look like at trial?”. Relatively few lawyers now have that experience, but let me tell you there is nothing quite like the suspense you get in court as the spotlight falls on a document, a class of documents, or perhaps a missing group of documents. I have a memory going back some 35 years of exactly that, the ever more tense feeling as you watch a small crack opening up under the pressure of close enquiry and turn into a chasm which, you suddenly realise, could and should have been identified a year ago.

On that occasion, the defects were not ours, but it was not until the facts were subjected to the intensity of cross-examination and judicial interrogation that the weakness in preparation was uncovered. I imagine that some of the people who sat through the ICI trial felt like that.

Disclosure-related quotations from the judgment

These quotations from the ICI judgment may help focus the mind on your next discovery exercise:

…..certain earlier steps in the litigation came under scrutiny during the trial. It emerged that ICI had been far from frank, if not downright misleading, in terms of what the court had been told at an interlocutory stage concerning disclosure [Para 19 in the context of the change of counsel].

Prior to that….ICI had served further disclosure of a very large quantity of documents …on MMT, numbering approximately 30,000 documents. Some of these had previously been argued by ICI as being privileged. When a review of the assertion of privilege was ordered…..this led to a realisation on behalf of those advising ICI that these documents were not privileged and should be disclosed. Jefford J found that this late and substantial disclosure by ICI put MMT in an “impossible position” so far as preparing for the trial in November 2016 was concerned [Para 21].

However, during cross-examination of Mr Boerboom at the liability trial, it became clear that a number of Steer Co meeting minutes, namely for the months of February to September 2013, April 2014, June 2014 and July 2014, did exist but had still not been disclosed [Para 23].

In fact, two of the sets of minutes had in fact been provided to [their own solicitors] by ICI prior to October 2016 but had gone “missing” and had never been disclosed. This was said to be either because they had been mislaid, or because they had been sent to ICI’s then leading counsel for the review of privilege, and then “lost” on the way back to ICI’s solicitors’ offices from counsel’s chambers [Para 23].

It should also go without saying that orders of the court are meant to be complied with, and orders in respect of disclosure are no different. If, as here, orders for all meeting minutes of a particular committee are ordered to be disclosed, and that committee meets monthly, and such minutes (which are to be disclosed) refer to minutes of meetings in other months (which are not), it should not be too difficult a task for the party giving disclosure (in this instance ICI and its solicitors) to realise that its exercise is deficient [Para 24].

If you feel like casting any stones here, do remember that old adage about those who live in glass houses. And don’t think that this sort of thing, with its accompanying opprobrium, only happens in very big cases.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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