One of the most challenging problems facing anyone trying to hold companies accountable is lack of information. Without information about corporate structures, finances, internal procedures, and business operations, civil society counter-strategies risk being ineffective, and legal action can be a non-starter. It is because information is so important that control of information is a prominent feature of harmful corporate strategies.
Companies often refuse to disclose critical information unless compelled to do so. Even when companies do disclose information, the information they disseminate may be distorted to deflect public scrutiny or minimise perceptions of irresponsibility. Companies may also argue that they could not reasonably have known about the negative impacts of their operations by hiding behind the supposed complexity of their supply chains. Forcing information disclosure by companies through initiating a legal case can be useful to counteract these harmful strategies.
Before starting any legal claim, it is useful to consider the disclosure rules in the jurisdiction where the case is to be brought. In some countries it is possible to require defendants in civil cases to supply the plaintiffs with information in a process called “discovery”. This pre-trial process involves the plaintiff’s obtaining information from the defendant in order to gather evidence for their claim. Skilfully framed requests for information are more likely to result in the discovered data being useful. It is therefore worth investing time and effort in building a detailed understanding of how the company operates in relation to the harm caused, so as to ask for all relevant documents.
Another often overlooked strategy is to look at other court cases against the company or its affiliates. Documents disclosed in other cases that the court’s judgment refers to or are otherwise accessible through legal avenues can provide useful information. Obtaining them can be painstaking but rewarding work.
RESOURCE: Ask the EU for access to EU documents
Carefully framed freedom-of-information requests can sometimes also enable claimants to gain information about a company. Freedom-of-information laws generally apply only to government bodies and often have limitations on disclosure of information regarding companies the government has been in contact with. However, seeking information from government regulators of an industry can result in the disclosure of useful data, which can also help rebuttal research.