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13/02/2024 – Digging for discovery – steps to simplify the process

Have you been in a position where a claim has been made against you? If you have, you will no doubt be familiar with the term “discovery”. If you haven’t, it is something you should be aware of as the steps you take right now matter and can help defend any claim and streamline the process.

What is discovery? Discovery refers to the process whereby parties to a court proceeding are required to provide all relevant documents to their case. In short, the process will generally involve your solicitor preparing a list of documents relevant to the proceedings, and providing it to the other side. The other side can then ask to see or obtain a copy of those documents.

The discovery process is important as it allows parties to prepare and produce the evidence that they will be relying upon with the objective of avoiding any surprises at trial and keeping proceedings quick and efficient. The dark side of discovery is that it will force you to disclose even damaging documents to the other parties to the litigation, and this could be used against you.

So how do you know what documents you need to provide? The first step of course is to liaise with your insurer and lawyer regarding the process, but it is helpful to know what you might need to do so you can ensure you have an effective system in place to help simplify the process.

“Document” is defined very broadly by the courts and essentially it covers everything. Put simply, it is anything on which there is writing, marks, figures or symbols. It includes both hard copies and soft copies. A document includes things you might not traditionally think of such as social media posts and messages, text messages, phone records, voice messages and drone footage. It may also even extend to documents being held by third parties (such as your solicitor or accountant). It also includes damaging and even confidential documents. The general exception is for those documents subject to “legal professional privilege”.

Legal professional privilege essentially protects communication between a lawyer and a client whereby the communication is for the dominant purpose of legal advice for litigation. The court takes a strict approach as to what is subject to legal professional privilege. Just because you label something as “privileged” doesn’t mean it is privileged and can’t be disclosed. Likewise, if you have labelled documents as “Confidential”. It is a good idea to keep any documents that are subject to legal professional privilege in a separate file / location so you don’t inadvertently disclose such documents to the other side and potentially waive your right to privilege.

We will be frank and say that discovery is not an enjoyable process. It is time-consuming and tedious, but the process can be simplified if you have a good document management system in place. A solid document management system should cover the “lifecycle” of a document, that is:

  1. Creation;
  2. Storage and Use;
  3. External Transfer;
  4. Archiving; and
  5. Destruction.

We won’t get into the nitty gritty of all of the above. What we want to emphasise in this article is how important it is to create good written records as not only will it simplify the discovery process, but they will be key to the defence of any claim as the records will aid and support your memory. Courts are traditionally sceptical of witnesses who rely on their unaided memory. It is therefore essential that you have contemporaneous documents so you can rely upon them years after their creation. If you don’t have the necessary documentation, it won’t necessarily mean you will be uninsured but it will make the case harder to prove.

It is a pessimistic view to take, but every time you do something (such as have a phone call with a third party or have a meeting), you should think about the worst case scenario – what happens if a claim is made against me or this matter ends up in court? Would I have the necessary documentation to justify why I took the approach I did? If yes, make sure that documentation is placed as soon as possible on the relevant file. If you don’t have documentation, then as soon as you can, you must take steps to create a good, clear record of what happened. For example:

  • you might prepare a file note of a conversation (it is also good practice to then confirm that outcome of that conversation with your client in writing, such as by email) and add it to the file;
  • if you communicated via text message, take a screenshot of the message, and add it to the file;
  • if you took drone footage, make sure the footage is uploaded to the file; and
  • if you are relying on a warranty which only appears on a supplier website, then take a screenshot of that page and save it to the file.

We mentioned above that discovery can also involve disclosing damaging documents. For example, let’s say in a heated moment you email something you probably otherwise wouldn’t write in a formal letter. Such documentation would need to be disclosed regardless as to how damaging it is to your case (and/or your reputation) and you definitely cannot destroy damaging documents otherwise you might face severe penalties. For this reason, it is important to keep documents as factual as possible.

All of your documents should be centrally stored on the project file and not saved on your personal drive. You should be able to easily access and search for documents. That also goes for emails – filing them in your own internal email folder is not going to be effective as if they are on the relevant file and easily accessible. This will simplify the collation process. It is also very important that you back up your information.

We recommend keeping your documents for at least 10 years after completion of your services (although ideally as long as possible). Given the rapid advancement of technology, make sure that you can retrieve the electronic files for years into the future.

If you are subject to a discovery procedure and your documents aren’t in order, you will face a very time-consuming task of gathering all documents. There have been cases where consultants have had to rely on the services of an external legal document management company. Such services are very costly and unnecessary as all workplaces should have a good document management system in place. There have also been cases where the costs of complying with discovery exceed the costs of litigation which is not ideal at all.

It obviously depends on the context, but if you don’t have the relevant documentation, it doesn’t necessarily mean you will be uninsured. However, it will certainly make the process more difficult.

So where to from here? We suggest that you:

  1. Revisit your workplace’s document management system;
  2. Check that your workplace has protocols in place that cover the lifecycle of a document;
  3. Ensure all of staff are trained in the policy (and your workplace regularly revisits the policy);
  4. Have all documents stored centrally; and
  5. If you haven’t already done, separate documents which are subject to privilege.

Hopefully you won’t ever have to go down the discovery path, but if you do, and you have good document management systems in place, it will help lighten the load, and put you in a good starting position to defend the claim.

Lisa Wastell-Anthony
Risk Manager

This article is only general advice in respect of risk management. It is not tailored to your individual needs or those of your business, nor is it intended to be relied upon as legal or insurance advice. For such assistance you should approach your legal and/or insurance advisors.

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