An article called A timely reminder for clients not to “self-select” disclosable documents by Rhys Novak of Charles Russell Speechlys draws attention to the judgment in Square Global Ltd v Leonard  EWHC 1008 (QB) (28 April 2020). It is an employment case, about alleged constructive dismissal, but what is said about disclosure applies to any civil case. The relevant part is in a Postscript beginning at Paragraph 195.
The point at issue was whether Mr Leonard had been “remiss in complying diligently with his disclosure duties”. The arguments (on which the parties submitted brief written submissions) involved a conflict between the idea that a party is best-placed to know what documents exist, and the duty of solicitors to control what is selected. Square Global “were not suggesting that there was a breach of any professional obligation by Mr Leonard’s solicitors, as opposed to underscoring what they submitted was evidence of lack of candour on the part of Mr. Leonard himself.”
Leonard similarly complained about Square’s disclosure.
The judge said that he was “..not prepared to find, on the basis of the evidence I have seen, that there has been a breach of professional duties on either side”, but he went on to say this:
It is fundamental that the client must not make the selection of which documents are relevant (cf. the allegation in this regard made on the Claimant side). The position is well summarised in Matthews and Malek, Disclosure (5th edn. 2017), at paragraphs 18-02 and 18-09:
“A solicitor’s duty is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. This duty owed to the court, is:
“one on which the administration of justice very greatly [depends], and there [is] no question on which solicitors, in the exercise of their duty to assist the court, ought to search their consciences more.”
“The solicitor has an overall responsibility of careful investigation and supervision in the disclosure process and he cannot simply leave this task to his client. The best way for the solicitor to fulfil his own duty and to ensure that his client’s duty is fulfilled too is to take possession of all the original documents as early as possible. The client should not be allowed to decide relevance—or even potential relevance—for himself, so either the client must send all the files to the solicitor, or the solicitor must visit the client to review the files and take the relevant documents into his possession. It is then for the solicitor to decide which documents are relevant and disclosable.”
Rhys Novak opens his article by drawing attention to the difficulties imposed at present by home working and by practical implications of enforced distancing. How do you take control of the disclosure process when lockdown prevents the usual physical examination?
This is something which disclosure / discovery providers have been preparing for long before coronavirus came along. Pure cost considerations, never mind physical restrictions, have long dictated that email and other documents and data should, where possible, be collected remotely, without the need for physical handover of media and data. The steady move to the cloud has facilitated this, and the first reaction of providers when the virus struck was to brush up both their processes and their marketing to emphasise their ability to collect most data remotely.
Have we passed the point where solicitors are able to satisfy themselves that they have seen everything potentially disclosable? There is a reference in the judgment to a message sent “apparently by Whatsapp”. If there was one, might there not be more? And if Whatsapp was used, what other communication channels were used?
I am not suggesting that every dispute needs a full examination by a data expert (though there is a good reason why many do). I do think, however, that solicitors ought to be asking themselves with every case whether their own examination of the data is a) within their skill set and b) cost-effective compared with hiring someone else to do it. Many are well able to do this; I suggest merely that the question should be asked, and that the answer will not necessarily be the same for every case.
Vince Neicho of Integreon, commenting on this case on LinkedIn, put it like this:
Where the potential data set is small and manageable, the suggested approach may well be sound. However, where a party’s data set is large and dispersed over a myriad of complex systems, simply passing it (in its entirety) to its solicitor is likely impossible and would lead to enormous unnecessary expense. Instead, the solicitor needs to gain an understanding of the data and carefully advise the client on what needs to be collected for review.
There are people (like Integreon) who do this for a living, and have the skills to do it efficiently and thoroughly. The lawyer’s job is to make inclusion decisions, both at a high level (what, broadly, are we looking for, over what period?), and at a granular level (is this document disclosable under Rule 31.6?). They are not necessarily best employed on the stage in between.