Sleepwalking into (disclosure) oblivion – key considerations when litigation’s in the air
Charles Russell Speechlys Succession Watch: Episode 8
This week’s episode of Succession ended on familiar ground: the Roy siblings at odds, the nation divided, and the battle for the presidency still to be won. ATN may have called the election for Jeryd Mencken, but even as the cameras rolled on his victory speech it was clear the race was far from over. Next stop on the campaign trail? The courts.
As ATN’s news manager, Pam, observed at the end of the night, a lengthy legal process is sure to follow. With litigation looming, the Roys and all at ATN would do well to remember the duties that come with it, and in this week’s article we highlight a few key points to keep in mind when faced with proceedings in the English legal system.
“You know, it’s one of those…it’s one of those picky fires”
Fans of Succession will hardly be strangers to the idea of preserving documents – or not preserving, given Tom’s decision to “shred [the] cruise problem away” with Greg’s help in Season 1, Episode 5. Sending a “bunch of corporate materials” for “an extra shreddin’” is a prime example of what not to do when faced with the prospect of litigation. Instead, documents that may relate to the dispute must be preserved. This means no fires “accidentally” destroying files – swap in “the documents that would clinch the other side’s case” for “the absentee ballots that would have carried Wisconsin for Jimenez” – but it also means hitting pause on any auto-deletion policies you or your organisation might have in respect of documents such as old emails and ensuring files are backed up if you change laptops or mobile phones. If third parties control or manage your documents, you should consider whether they also need to be instructed to preserve documents. The same can be said for employees: the duty to preserve documents applies to everyone, not just an organisation’s legal department. If there’s a suggestion that potentially important documents have been altered or destroyed, the court may draw adverse inferences – which could be very damaging to your case. If in doubt, think “what would Tom and Greg not do”, and, of course, take legal advice.
“Maybe we keep my…my terrible secret a secret you know?”
We’ll have to wait to see if anyone will sue over Matsson’s fudged subscriber numbers in India, but in the context of disclosure in the English courts it’s hard to see how they could stay secret. Parties are required to disclose all relevant documents that are within their control, with the definition of documents extending to anything in which information of any description is recorded. This will catch everything from paper and electronic files to text messages and voicemails to metadata and data in databases; technically, even the whiteboard Tom “cleans” in this week’s episode could qualify, and the copies of the soon-to-be-shredded documents Greg makes in Season 1 certainly would.
Of course, to be disclosable documents must also go to the dispute at hand. Parties must disclose the documents they are relying upon, but also those which adversely affect their own case or the other party’s case and those which support the other party’s case.
For the purpose of the Civil Procedure Rules, ‘document’ means ‘anything in which information of any description is recorded’. In this week’s episode the most inflammatory communications about the Mattson deal and the decision to support Mencken were private conversations, usually held between two people behind closed doors and not minuted or recorded (as far as we could tell). This would (no doubt intentionally) take them outside of the parties’ disclosure obligations (although the matters discussed might be covered in witness statement evidence).
In addition to being relevant, documents must also be in a party’s control. This means documents (i) which are or were in a party’s physical possession, (ii) in respect of which a party has or has had a right to possession, or (iii) in respect of which a party has or has had a right to inspect or take copies. Using the example of Matsson’s subscriber numbers, GoJo would likely need to disclose the underlying data and communications surrounding the coverup, as well as documents created by any third parties, such as accountants or auditors, that they had a right to make copies of or to view. That said, while they may need to disclose documents (i.e., make the other party aware of their general existence), they do not necessarily need to provide them in each case – which brings us on to privilege.
“Listen, this is privileged information”
Unfortunately for ATN’s electoral analyst, Darwin, calling something privileged does not automatically mean that legal privilege – the ability to withhold documents or other communications that would otherwise need to be produced as part of court or regulatory proceedings – will apply. Legal privilege falls into two camps, litigation privilege and legal advice privilege, and each comes with a few requirements.
Litigation privilege applies to communications made between a client and/or their lawyer and a third party which are made for the dominant purpose of providing legal advice or collection evidence for use in litigation in which you are or may become a party. If proceedings have yet to start, they need to be reasonably anticipated for litigation privilege to bite – the general spectre of lawsuits that hangs over the Roys and Waystar Royco won’t be enough.
Legal privilege attaches to communications which are made between a client and their lawyer (but not a third party) and which are made for the dominant purpose of seeking or obtaining legal advice. In this context, “client” is quite narrowly defined – this means only those individuals who are authorised to seek or receive legal advice in respect of that communication. Organisations should establish which group of individuals will be considered the “client” and only this group should communicate with in-house and external counsel – while Roman might want all of his communications with Gerri to be privileged, that certainly won’t be the case.
Documents and communications also need to be – and be kept – confidential for legal privilege to stick. If a communication is privileged and confidential but is then forwarded to a wider group of people, privilege may be lost. Like most things on the show, the cavalier way in which information is shared on Succession should serve as a warning.