Control Risks

Not just a matter of terminology: disclosure between the US and UK is redefining the role of legal counsel

By Cory Birenbaum and Rod Anderson

US courts are notoriously unsympathetic to foreign procedural rules or data protection laws that prevent litigants or regulators from gaining access to key company documents. Here we outline how general counsel and their advisers can prevent their employers from falling afoul of US judges.

The differences between the disclosure or discovery regimes in the UK and the US go much further than the choice of word to describe the process of finding and disclosing documents to an opposing litigant or to a regulator. There are significant legal, procedural and cultural differences between the jurisdictions, which can lead to serious ramifications for companies and their legal advisers if they are not well understood and prepared for.

Litigation culture between the US and the UK has always been quite different and this is no less true when it comes to disclosure law and practice. If anything, they are moving further apart. When it comes to discovery, the practice in the US has long been to provide opposing counsel with a wide range of documents and leave it to them to work out which documents are relevant. In the UK, by contrast, it has long been considered the disclosing party’s obligation to determine which document sets are likely to be relevant to a matter and to only provide these, rather than swamping their opposition with likely irrelevant material…

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