If you are a party to a lawsuit, the day will come when your lawyer will tell you two simple-sounding words that feel awful in practice: Produce Documents. If you have experience with litigation, you will likely have some notion of how excruciating that small request can be. Along with undertakings, document disclosure is a frequent source of tension between lawyer and client as you move through litigation. The purpose of this article is to help you work more effectively with your lawyer at this key stage in the process.
The concept is simple, and it actually serves a very valuable goal: Surprise should have no place in a civil lawsuit. Disclosing documents, like disclosure of other evidence, takes place early in legal proceedings because having the fullest information possible early-on allows reasonable people to make reasonable decisions that result in the settlement of legal disputes which are quick and, on balance, at the lowest possible cost. Yes you read that correctly: The legal system tries quite hard to get people justice and save them money while they’re at it.
The problem is that while you are in the thick of it, there is nothing about litigation that feels like it is about saving money or headache. In Alberta, like most jurisdictions, a litigant discloses his or her documents by providing a list of the documents to the other side or other sides in the lawsuit. The list is attached to an Affidavit; in other words, a sworn statement attesting that the list is an accurate list of what the litigant has.
Document production may well feel excruciating at the time, but you can make it very easy. Here is how to do it:
You now have created your bundle of documents, which is really the hardest part of document production. The reason why people find document disclosure so difficult is that they try to make it into a single big project that they do all at once and then human nature causes them to procrastinate. In a lawsuit, “procrastinate” and “lose” are pretty close to being synonyms.
It’s a simple system and for the most part this is all you need to know. Sometimes, however, you may have some additional issues that crop up when you are gathering documents to give to your lawyer.
You may find yourself asking “What is relevant?” A document is relevant if it could help somebody decide whether a statement made in the Statement of Claim or Statement of Defence (or any other pleading which is any document setting out the position of a party in a lawsuit) is or is not true. “Relevant” and “Smoking Gun” are not the same thing. While a document might be only a small help to someone deciding the case, it is relevant if it could help them decide a fact in the case. If you have a lawyer representing you, then deciding relevance is one of the key things you are paying that lawyer to figure out on your behalf. When in doubt, include it in the bundle of documents you are giving your lawyer.
On a cautionary note, remember that your lawyer will be making copies of the documents available to the other side once you have made your disclosure and they may well find their way into evidence. It can be very tempting to get out your highlighter and pen and write notes on the documents to explain to your lawyer what you think the documents mean or why you think it is relevant. However, remember that your handwritten note on a key document “This is where the $%&*$# double-crossed us!” will be something your lawyer cannot do much – if anything – to keep out of the official record. If you must, use sticky notes to add your editorial comments.
Occasionally, you will encounter a problem figuring out what the limits of what you have means. If your lawsuit relates to your business’ profits or losses and all your business records are in the hands of your accountants while they prepare your financial statements you still have those documents even if they are not in your desk drawer. In that case, you would need to contact your accountants and get a list of what they have on your behalf and be sure to include those documents among the records you are disclosing. You would also need to make sure that if the other side wants copies of them you can and will get copies of the documents to them. Ideally, you would ask your accountant to drop your records on a scanner and e-mail them to you so that you don’t have to worry about issues like that.
What happens if you used to have a document but now no longer have it? If, for example, your company’s books and records were destroyed in a flood, you would still be required to list what you once had. Obviously you cannot now produce copies of what you no longer have, but you would indicate that fact in the body of your Affidavit of documents. You are not expected to be super-human in litigation, nor do you have to break the laws of physics by travelling back in time to save documents you no longer have. All that is expected of you is that you make reasonable efforts and be candid about what you no longer have.
What if you have documents that you would rather the other side not see? The answer depends largely on the reason why you do not want the other side to see the document. If your reason is that the document is a letter from your lawyer explaining the good and the bad of your legal position, then you do not have to make that document available to the other side because it is privileged. Privilege is a cluster of rules that protect certain information from being disclosed in legal proceedings.
On the other hand, you may not want to disclose a document because you are worried that it will hurt your case. That will not be a sufficient reason to withhold the document. The underlying rationale for document disclosure, as with much of litigation’s rules, is to take away surprise. If you have a weakness in your case, the other side should know about it as early as possible. This early disclosure encourages parties to settle, and you should remember that this obligation is reciprocal, i.e. the other side will similarly have a duty to disclose to you both what helps them and what hurts them.
We hope this helps you the next time your lawyer brings up the D-word, “documents”. Working well with your lawyer is an important part of resolving your legal problems in a way that is cost-effective and as satisfactory as possible.