Electronic Disclosure – protecting your confidential information in court proceedings
The paramount importance of protecting confidential information for businesses has been highlighted in the previous article of this series which considered the practical steps one may take in avoiding the risks of former employees mis-appropriating confidential information.
Should a dispute arise in relation to such confidential information, it is likely that the parties will be subject to extensive disclosure requirements including a thorough discovery phase. In an ever-evolving technological world, this disclosure is increasingly of electronic data, and this causes a problem.
Businesses involved in such disputes should be aware of the possibility of the release of the very commercially sensitive information during the legal disclosure process, which the business has sought to protect. This is particularly important in disputes between competing manufacturers where trade secrets are involved.
For a business, the discovery phase may be extensive ranging from metadata to deleted documents and from backed-up to residual data. The requirements for e-discovery are not necessarily limited to those contained on a computer and may extend to instant messages, texts and audio files. Carrying out a search of these devices and reviewing the documents need to be controlled as it can quickly spiral into the realms of disproportionality.
The time and cost of any e-discovery process will be reliant on the quality and organisation of a business's systems and records. It is also key to reduce the scope of the search as far as possible so that documents identified are relevant to the dispute.
In a recent case involving a client in the manufacturing sector, it was necessary to take additional steps to protect its confidential information within the disclosed electronic data. Commercially sensitive information was removed from individual documents and a confidentiality ring was put in place so that sensitive documents were only seen by nominated advisors under strict conditions.
When these risks are highlighted, a court will work with the parties to ensure that the litigation process is not inadvertently used to access another party's confidential information.