In a lot of litigation we have a "chicken and egg problem" - you cannot draft proper pleadings until disclosure has taken place. Additionally there are now "protocols" under which each party is meant to write to the other before litigation has commenced seeking to establish the issues in the case so that they know what is really being disputed. Failure to comply with these protocols can lead to orders for costs being awarded against the party in breach.

But there is a different way of approaching the litigation - one which is fully allowed under the rules but which most lawyers have never heard of. It is to approach the action by way of an order for electronic disclosure. Let's start with a useful judicial quote:

"It is well known that people say things in e-mails which they would not dream of putting into a letter or a minute or a formal note. Further, in litigation involving allegations of conspiracy or similar allegations, it may only take one revealing statement, perhaps in an email, to show clearly what people really thought..." Per Morgan J in Digicel (St Lucia) Ltd v Cable & Wireless PLC [2008] EWHC 2522 (Ch)

What you have to do is get hold of is all this material in electronic form - using technology to find, index and sort the materials - extracting the killing needle, or stiletto, from the haystack of garbage and chitchat.

Now the first step in this process involves a procedure known as "pre-action disclosure" under Part 31(16) CPR. ( CPR = "Civil Procedure Rules" which are the rules laid down by the High Court under which disputes are to be litigated.). Part 31 of the Rules sets out the procedure to be followed for "Disclosure and Inspection of documents" in civil litigation. Disclosure is the process which occurs after pleadings and before the matter comes to trial. Lost? Well I will try and put it in straightforward terms.

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