Part 31 of the Civil Procedure Rules states, in section 31.6, what documents are to be disclosed in “standard disclosure”
Standard disclosure requires a party to disclose only –
- the documents on which he relies; and
- the documents which –
- adversely affect his own case;
- adversely affect another party’s case; or
- support another party’s case; and
- the documents which he is required to disclose by a relevant practice direction.
(Definition of a document available here)
In short this means that all documents both for and against your case need to be disclosed, and the same is true for the opposing party.
Example
If Company A is in litigation against Company B because they sold them a product which was faulty, and A states that B knew it was faulty and asks for documents in relation to this product then B would have to search their documents and find the relevant information – in accordance with 31.6 above, including internal memos about the subject. If the COO of B wrote an email to the CEO of B stating that “this stuff we produce is junk, we should really fix it before we sell any more”, then this would, of course, help A’s case, and such B would be expected to produce this document.
This type of document is often referred to as an example of a “smoking gun”, however, they rarely happen in real life.
No Smoking Gun?
As there is rarely going to be a “smoking gun”, the legal team legal teams have to work on other methods of deciding on the “facts” of the case (which is really just an approximation of the truth).
This is normally done by searching through the documents/data, identifying the potentially relevant documents, reading those and then deciding if these are relevant to the case and if so are they to be provided to the other side. For this to be effective is is critical that the initial search is conducted appropriately – else any subsequent review will be ineffective.
The scope of the search is defined by Section 31.7 of the Civil Procedure Rules