DISCLOSURE

Duty to preserve documents

In almost all civil and commercial cases in the British Virgin Islands, there will be formal disclosure or exchange of documents relevant to the issues in the case by each party to the other(s) as part of the litigation process.

It is essential that any documents that may be conceivably relevant to your case are preserved, and not destroyed or deleted. You must consider whether any adjustment to your normal document retention policy is required, and take immediate steps to preserve the documents.

If you create and / or receive a lot of electronic material relevant to this matter please let us know so that we can discuss what you should do now to store and manage it. Any relevant data should not be deleted or purged and you should instruct your IT manager accordingly.

The disclosure obligation

Every party to legal proceedings must disclose to every other party in the litigation the existence of all "directly relevant documents" which are (or have been) in its "control", and provide copies if requested. This will include documentation disadvantageous to your case or documentation that you regard as commercially sensitive.

A document is (or has been) in your control if you have (or have had) the document in your physical possession, or you have (or have had) a right to inspect it or to take copies or take possession of it.

A document is directly relevant to the matters in question in the proceedings if you intend to rely on it or it tends to adversely affect your case or support the other side's case. We will help you decide which documents are relevant. If in doubt, please provide us with the document.

The definition of document is very broad and means "anything on or in which information of any description is recorded". This includes both physical and electronic documents (such as letters, internal memoranda, diaries, personal notes, drafts and copies, e mails, faxes, text and instant messages, word-processed documents, databases, spreadsheets, deleted items, information stored on servers and back-up systems) including related metadata (high level information about electronic documents such as the creation, editing, viewing and deletion history).

Duplicate documents

Any copy document which contains a modification, obliteration or other marking or feature which is not present in the original or duplicate must also be disclosed as a separate document.

Your duty, when ordered by the court to give standard disclosure, is to produce a list of all "directly relevant documents" in a convenient order. A part of this list should state:

  • what documents are no longer in your control;
  • what has happened to those documents;
  • where each such document is, to the best your knowledge, information or belief.

If you are a company, firm or organisation, the list must state the name and position of a person responsible for identifying individuals who might be aware of any document which should be disclosed.

You must also identify and list the name and position of all individuals who have been asked whether they are aware of any such documents. The maker of the statement will have to sign a certificate on the disclosure form stating that you (and they) understand your duty of disclosure and have, to the best of your knowledge, complied with it. The duty to disclose continues and any new documents created will need to be disclosed. The court may also order you to search for specific documents to disclose.

Sanctions

The sanctions and penalties for non-compliance with the disclosure rules are severe. You may not be allowed to rely on any document that you fail to disclose at the proper time. In addition, the court may also strike out your Statement of Case. Likewise you could be held to be in contempt of court, the consequences of which are serious.

Inspection

Any party receiving a disclosure list has a right to inspect any document on the list within 7 days (or to receive a copy upon agreeing to pay the reasonable costs of copying), except documents protected by privilege (see below), or documents no longer in the other party's possession.

Privilege

The other side will not be entitled to see any of your documents that are protected by "privilege" although you do still have to disclose their existence. However, legal professional privilege is limited in scope and generally only applies to communications between a client and its lawyers concerning legal advice, and documents created after legal proceedings were contemplated, or commenced, for the sole or dominant purpose of obtaining legal advice in relation to the proceedings, or of obtaining evidence to use in the proceedings. Other forms of privilege include without prejudice protection for settlement negotiations, privilege against self-incrimination and public interest immunity privilege.

Creation of new documents

You should take great care not to generate new documents that could become disclosable and prejudice your position in the proceedings. Examples include internal memoranda, notes, or minutes of meetings, correspondence with third parties (including non-legal advisers), board or committee minutes, text messages, e-mails and other electronic communications. These may not be covered by legal professional privilege even if they repeat our advice to you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.