The question of control in the context of preservation and disclosure is a factual one that will ultimately require parties to litigation to give careful thought to the nature of their relationships with former employees, but more particularly group entities, agents and third parties. Documents on the personal devices of former employees or generated pursuant to relationships governed by foreign law may nonetheless be deemed to be within a party’s control, whilst those of a party’s subsidiary may not be. This article covers some of the key principles established by the courts in navigating the labyrinth.
The disclosure rules under Practice Direction 57AD are clear that parties must take reasonable steps to preserve documents within their control, and disclose documents which may be relevant to any issue in the proceedings that are or were within its control. Part 31 of the Civil Procedure Rules is similarly clear that the court's jurisdiction to order disclosure extends to documents within the control of the parties to the litigation. The Judge in Pipia v BG Group Ltd1 said of control that it "fixes the universe of documents from which a party's Extended Disclosure is to be generated". Thus, central to establishing who might hold documents which must be preserved and may later need to be disclosed is the concept of "control". Documents which are deemed to be or have been in a party's control are defined within the rules (PD 57AD Appendix 1, 1.1) as including documents:
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