Disclosure – What Can I Do When The Opposing Party Fails To Preserve Documents In Line With Their Duty?

What is standard disclosure?

The duty of standard disclosure means parties must disclose any documents of relevance to the case, whether it benefits or adversely effects their case. This duty is on-going throughout the case and parties must preserve all relevant documents relating to the case. Whilst it is expected all parties will comply, a party may seek to obtain an underhand and unlawful, advantage by destroying documents which can be detrimental to their case. The opposing party may never become aware of this and even when suspicions are raised, there can be a difficulty in proving such.

There may also be occasions where documents are no longer attainable by a party, most likely due to storage or technical issues. In this event, an honest party is expected to make the opposing party aware of this and should explain why this is the case.

What can I do if an opposing party does not preserve documents in-line with their duty of standard disclosure?

In the event documents are not disclosed or purported to be irretrievable, the opposing party may seek further action is taken in order to obtain the documents. This can be vital to that party as these documents may be a deciding factor in the case. Action available to that party will very much depend on the type of document, however in the modern age, most documents are now stored by some electronic means.

Physical documents

With regards to physical documents the options available are limited. Especially because the party may have destroyed this meaning it can never be retrieved. A party may seek to obtain a search order for the offending party’s property to be searched, however, it is expected this will not be readily granted, save for exceptional circumstances, and in any event, implementation of such an order can be prohibitively expensive. Fortunately the need for this nowadays is limited with paper only documents becoming less common.

Electronic documents

There are more options available when dealing with electronic documents. Unlike physical documents, electronic documents can be retrieved even after being deleted.

A starting point to having an expert inspect the opposing party’s electronic devices would be to simply request this. This request can be made when the opposing party advise some documents are irretrievable. The opposing party should consent as this is in-line with their duty of disclosure. A party will be aware that refusal suggests there is something to hide, which the Court may make inferences from or may encourage a formal application being made.

If the request is refused, a party may make an application to the Court for an expert to be instructed to inspect the other party’s electronic devices. This must be supported by a good reason and if the other party has not alleged documents are irretrievable, evidence of withholding documents will likely be required.

Alternatively, a party may seek a search order seeking the same. A search order is, however, more onerous and the Court will expect to see more significant evidence in its support. A less onerous option is an imaging order but this will not extend to allow a forensic computer expert being instructed. Again, any refusal to comply with any order obtained may be used to draw adverse inferences from.