It’s not what you say, it’s where you say it!

Do you know what Intercepts are?

Sounds like some kind of American cop series – The Intercepts! But it’s not.

Intercepts are just the latest in a long line of issues for those involved in litigation, in the ever growing job of disclosure, the process of providing the other side and the court with all the information that each party will be relying on in court.

When I started out in law (back in the dark ages as my 16 yo would say) it was simply a question of listing agreements (such as contracts), correspondence (just letters) and notes (attendance notes, meeting notes etc). Whilst those lists could be quite extensive (correspondence with the other side, correspondence with other parties, correspondence with the court, correspondence with witnesses) the headings of documents we were looking for was quite simple.

Today, that list looks very different. It can include WhatsApp messages, messages on social media, recordings, downloads, CCTV footage.

But what about Intercepts – communications to someone other than the sender or intended recipient during the course of its transmission. So, for example, this might include if someone sent you an email in error. If you have the proverbial smoking gun, can you still shoot it?

The current law is that Intercepts are not admissible as evidence in English courts although this puts us at odds with many other jurisdictions. It also means that the law is not keeping pace with technology and that disclosure has just become even more complicated as a result.

Often by the time you become embroiled in litigation, it can be difficult to find all the documents (messages, communications, notes, recordings etc) that you might need and then you’ve got to work out if it’s admissible through a myriad of legal issues. You can never know what matters might end up in dispute and what won’t, but there are still things you can do to make life easier should the worst come to the worst.

So it’s never too late (or too early) to think about office processes you can put in place to make sure that everything you need is where you need it. For example, with so many staff using their own laptops and phones, have you made sure that there is a procedure in place to back everything up, keep it all secure by passwords and hand it all over should they leave you. Provisions can be put into employment contracts, handbooks and settlement agreements, even after staff have started, but making sure it’s done properly could make the difference between success and failure in a court case.

Kleyman & Co Solicitors. The full service law firm. Discovering more ways to help you even before you know you need help!