Disclosure of documents in disputes and regulatory investigations can be time-consuming and capable of giving rise to inefficiencies and costly errors. The example of Atheer Telecom Iraq Ltd v. Orascom Telecom Iraq Ltd (2014) underlines the importance of ensuring that disclosure is carried out in a structured, recorded and defensible manner. Disclosure may seem administrative, but getting it wrong can hit hard.

The cost of cutting corners

Giving disclosure can be expensive, particularly if the data set is large or the exercise is not effectively project managed. However, disclosure risk can be exacerbated if data collation and review is not carefully documented and is later scrutinised by the other side of the court. There is much to think about in the post-Jackson world of disclosure: completing disclosure reports, providing EDQs, budgeting disclosure costs accurately, and making an appropriate choice from the new ‘menu’ of disclosure options (all of this often takes place before the document review has even started).

Few companies are willing to pay for a gold plated service. It is not surprising that, in seeking to do the job economically, one thing that often gets overlooked is the benefit of ensuring that the disclosure process itself is clearly structured, well recorded and forensically defensible. However, unless it is, the whole case can be fatally weakened.

Jan-Mar 2015 issue

Burges Salmon