GAK-killing amendments?

[Donald Ramsbottom]

SNIPS

>>I wonder if a key is a document for the purposes of discovery?  That
>>could be an awkward one.
>
>I would think a key would fall within the scope of whatever discovery is
>now called, but of course only if relevant to the issues in the case.  It
>would have to be the data forming the key that was relevant to the issues,
>and I can't envisage how it would be relevant to put it in evidence.
>Ideas, anyone?
>
>Regards,
>
>Nicholas Bohm
>


Under the CPR "discovery" is now "disclosure"

Disclosure means:

"31.2	Meaning of disclosure
A party discloses a document by stating that the document exists or has
existed."

Document means:

"31.4	Meaning of document
In this Part=A0=96
=91document=92 means anything in which information of any description is
recorded; and
=91copy=92, in relation to a document, means anything onto which information
recorded in the document has been copied, by whatever means and whether
directly or indirectly."

Standard disclosure means:

"31.6	Standard disclosure =96 what documents are to be disclosed
Standard disclosure requires a party to disclose only=A0=96
(a)	the documents on which he relies; and
(b)	the documents which=A0=96
(i)	adversely affect his own case;
(ii)	adversely affect another party=92s case; or
(iii)	support another party=92s case; and
(c)	the documents which he is required to disclose by a relevant practice
direction."


I think that from the definitions given above, both the text and cipher text
would be required, and as the "key" has information recorded in it it is a
document. All three items would be required to fulfill standard disclosure
as if any one of the items were missing verification of the authenticity of
the document is not rally possible.

Under part 31.17 orders can be made against 3rd parties once the court is
satisfied on the receipt of evidence that the disclosure is relevant to the
case.

"31.17	Orders for disclosure against a person not a party
(1)	This rule applies where an application is made to the court under any
Act for disclosure by a person who is not a party to the proceedings(37).
(2)	The application must be supported by evidence.
(3)	The court may make an order under this rule only where=A0=96
(a)	the documents of which disclosure is sought are likely to support the
case of the applicant or adversely affect the case of one of the other
parties to the proceedings; and
(b)	disclosure is necessary in order to dispose fairly of the claim or to
save costs.
(4)	An order under this rule must=A0=96
(a)	specify the documents or the classes of documents which the respondent
must disclose; and
(b)	require the respondent, when making disclosure, to specify any of those
documents=A0=96
(i)	which are no longer in his control; or
(ii)	in respect of which he claims a right or duty to withhold inspection.
(5)	Such an order may=A0=96
(a)	require the respondent to indicate what has happened to any documents
which are no longer in his control; and
(b)	specify the time and place for disclosure and inspection."


Failure by parties to comply with the rules leaves them open to contempt
proceedings by the court.



Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors
Internet Law & Global Cryptology Law Specialists
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