In her column on 4 February 1999, Kim Franklin described the process of discovery - the disclosure in litigation or arbitration of each party's relevant documents. Lawyers descend upon their own party's records, establish what is disclosable and what is privileged, and list the former. The other side then inspects and copies the documents in which it is interested. The practical experience of carrying out such an exercise leads to a rapid appreciation of difficulties which parties potentially create for themselves by their own 'document housekeeping'.
A party can decline to disclose a document on the grounds that it is privileged. Privilege arises in respect of documents passing between a party and its legal advisers for the purposes of getting legal advice. Advice from experts is rather different. Such documents are privileged only if they have been produced in contemplation of litigation or arbitration, and if the primary purpose of the document was to obtain legal advice.
It is important to distinguish between a claim made in accordance with the contract, such as a contractor's claim for extension of time, and a claim made outside the contract addressed to a court or an arbitrator. While there may well have been advice sought from non-legal experts in respect of a claim under the contract at an early stage, the documents arising from such matters cannot be privileged unless litigation or arbitration was contemplated at that stage. This gives rise to a series of questions having to be put to your party when the discovery list is compiled. When was litigation first contemplated? What was the purpose of this meeting? Why did you do these calculations?
It is understandably difficult for one's own client to accept that documents which they regard as confidential, embarrassing or commercially sensitive have to be disclosed, but their solicitor has a duty to the court to ensure that all disclosable and relevant documents are listed and made available for inspection. The other side is entitled to see all documents which may lead them on a train of inquiry which might advance their own case or damage that of their adversary. 'All documents' includes duplicates. Construction contracts invariably involve large numbers of people, and documents are necessarily duplicated. The other side is entitled to see all those copies. On just one of them someone may have made notes which make that document unique and valuable to the other side's case. No-one sets out on a contract with a view to litigating or arbitrating, but it can happen. Having recently read many hundreds of files on a discovery exercise,
I offer the following suggestions which might be of assistance in the event that you are one of the unlucky ones. First, it is inadvisable to make notes on correspondence. Writing a note on a contractor's letter which alleges late information, such as 'they may have a point - why were we three weeks adrift?' may seem a convenient way to communicate within your own office. In the event that the letter has to be disclosed to the other side, that note may become very inconvenient.
Secondly, however careful the discovery process, there is a risk that privileged documents will slip through. To help prevent this, as soon as legal advice is sought or proceedings are contemplated, keep relevant documents and notes separately. Finally, maintain an even tenor of correspondence. Writing a witty, or worse, angry, letter may seem a good idea at the time. A few years later, in the cold light of day, they tend to look embarrassing. The acid test is to only write letters which you would be happy to have read out in court.