Litigation Insights Inc
litigation insights inc
Navigant Consulting, Inc. Reports Second Quarter 2010 Results
CHICAGO—-Navigant Consulting, Inc. : Earnings per share of $0.16 on a GAAP basis, up from $0.13 in first quarter 2010 and $0.07 in second quarter 2009. Adjusted earnings per share of $0.17, up from $0.14 in both first quarter 2010 and second quarter 2009.
Vanessa Wittman, Marsh & McLennan
E-Disclosure
Legalistic, litigious, lawyer friendly. Like it or loath it, we are all of us more “legally bound” than ever these days, especially in business – and as usual technology continues to make things more, rather than less complicated when it comes to compliance. E-Disclosure for example. Mark Tudor, Principal at Matthew Arnold & Baldwin LLP, talked iQ through the basics.
1.   Disclosure?
Within the litigation process in the Courts of England and Wales, all parties are obliged to provide disclose and provide inspection to the other parties, documents upon which a party relies; documents that adversely affect his own case; and documents that could adversely affect or support that of another party.
Indeed, Disclosure is a cornerstone of the English legal system: a kind of ‘cards on the table’ duty.
2.   So what’s e-disclosure then?
Quite simply, the disclosure of documents which exist in electronic format only.
3.   And? What’s that got to do with my business?
Such information needs to be stored in case it is needed in legal proceedings.
4.   OK, so what constitutes a ‘document’ exactly?
From the general rule set out above, it’s clear that the process of disclosure has become more and more complex as the years have gone by.
In Dickensian times “disclosure” may have meant handing over only a handful of dusty old documents and a couple of letters. Equally, inspection of such documents was just that.
But as technology has improved and become ubiquitous, with processes such as photocopying becoming standard, the disclosure process has expanded significantly.
Accordingly, electronic documents are now more relevant and pertinent then ever- with any and all information saved in any shape or form, on any electronic device now potentially falling within the disclosure remit.
In fact though, there’s nothing particularly special about e-disclosure; it’s just a natural progression and expansion of existing disclosure obligations.
5.   What sort of information, typically, might we be expected to disclose then?
Literally anything and everything that could assist your case or that of the other side.
6.   But that could include a ridiculous amount of information…
Yes. But the control of the extent of the disclosure obligation (both in relation to electronic documents and hard copy documents) is that disclosure should be restricted to what is necessary in the individual case. How broad that is usually depends upon the amount of money at stake.
7.   Would we have to disclose even information that might compromise our business or our clients?
Yes; but procedures do exist to limit the use of such information so that it never becomes public.
8.   Precisely how must documents be “e-disclosed”?
At least for the moment, all electronic disclosure needs to be reduced to writing, with documents printable so that hard copies can be included in trial bundles. In the future a situation may arise wherein Judges are prepared to view documents provided electronically. For the moment though, paper remains king.
9.   So what do I do when asked to disclose my electronic documents?
Without wanting to limit the extent of your search you need to – at the very least – look for any potentially relevant information on the following: PCs, databases, back-up storage, mobile phones, notebooks, PDAs, portable storage media, servers, off-site storage, laptops, and any other handheld devices.
And remember these documents may include all manner of file types: mail files, calendar files, spreadsheet files, document files, web-based applications, graphic presentation files and so on.
10.   This is madness. Can I limit my disclosure obligations?
Whilst it is possible to ask the court to specifically rule on the breadth of disclosure, the experience of recent litigants in this area seems to suggest that the best way to approach the breadth of electronic disclosure is for the legal representatives on both sides of the dispute to agree the breadth of disclosure required and if agreement can’t be reached, to seek Court direction in relation to it.
Absent such agreement or direction and there’s a danger that disclosure either won’t be broad enough, whereupon it will have to be done again, or that it will be too wide, where the costs of doing it are argued not to be recoverable.
The safer bet is to get it sorted before you start.
11.   Does it matter where we store data, how, for how long then?
No; apart from Company law or Revenue law there is no legal obligation to retain anything if you have no knowledge of the possibility of litigations resulting in the document becoming disclosable.
However, putting in place a document destruction protocol that destroys records in breach of Company or Revenue law certainly won’t be looked upon favourably in a litigation context.
12.   What if we were to just not bother?
Electronically created information is nigh on impossible to destroy: If it is relevant, chances are that, ultimately, it is going to be found. Signing a statement of truth on a Disclosure Statement which is ultimately found to be incorrect is arguably contempt. Also, tell your solicitor that documents exist and then refuse to provide disclosure of them and they’ll have to withdraw you from the case.
13.   Where can I get more advice about this?
Your solicitor. Reference materials on court procedure. And the government – check out hmcourts-service.gov.co.uk
