In the age of electronic working where does your business stand? Andrew Cromby, partner in the Dispute Resolution Department at KSB Law LLP, looks at the dangers of email exchanges and details how companies need to think very carefully.
Not being able to resolve a commercial dispute in the early stages can result in claims being made through the courts.
Companies involved will need to submit a written statement of their position with each party producing statements of case, clearly setting out facts as seen by each party and providing a legal analysis of their respective positions.
The parties will be required to disclose to each other all documents that bear any relevance to the issues in dispute. It is not open to the parties to pick and choose – they have to include both the documents which assist their case, but also those documents to their detriment.
This is known as 'disclosure' and, in the past, each side has produced a list of documents, which can then either be inspected as original documents or copies.
Now, when most organisations conduct the vast majority of their business electronically and all too often paper documents are not created, the definition of what constitutes a document has widened considerably.
It isn't just an item in print; it is long established in law that recordings (including audio recordings and recordings in other electronic media) can be documents. In fact, anything that is capable of containing information can be a document.
Millions of documents
Therefore, many millions of documents are created each day in the forms of emails, Word files and electronic information stored in computers such as metadata – information relating to changes made to electronic documents stored on a computer system.
Copies of the document may exist in printed form, on hard drives or in servers – multiple copies can be held at several locations.
Towards the end of last year, the court confirmed what legal practitioners have known for some time; it is necessary, as part of the disclosure process, to inform the other party that copies of electronic documents exist, including documents on other servers, copies held on old hard drives, and so on.
Deleting a document from your computer is not the end of its existence – copies can be held in several locations and this can come back to haunt claimants or defendants who have created documents that in hindsight they wish they had not.
That flippant email sent a few weeks ago that has since been forgotten may be the biggest mistake an employee could have made.
Flippant email exchanges
There is a potentially huge danger to businesses in flippant email exchanges. It is not unknown for companies or businesses to send internal emails in relation to threatened claims making comments such as 'Have you seen this written claim from X? I am really worried about it.'
Whilst that may appear innocuous, the immediate question raised by the party that receives this document is likely to be 'why was there a cause for concern'? It could even be claimed that a statement of this kind could amount to an admission of liability.
A party in legal proceedings may be duty bound to produce a copy of the document. An email intended to circulate internally stating 'we are going to have to put our hands up on this claim' could well be disclosable in legal proceedings and the harm that such a comment could cause, such as the prejudice that it would create in the mind of a judge, could be immense.
Businesses need to give great consideration to their policies on emails, especially those relating to matters that could, eventually, give rise to formal claims. In certain circumstances, documents can be protected from being produced in legal proceedings on the grounds that they are legally privileged.
These circumstances are very precise and businesses need to take advice on what they can do to preserve their position, preventing unwanted admissions and other information being recorded in documents electronically and which they will subsequently have to disclose to the other side.
Minefield
E-disclosure could be regarded as a minefield, so companies need to take steps not only to consider what their policy should be in relation to e-documents, but also to highlight the urgency in enforcing those policies, and in doing so, protect themselves from legal liability.
This article is intended for general guidance only and is not a substitute for specific legal advice.
