Discovery Overview

Nature of Discovery

Discovery is a process by which parties to litigation and civil proceedings may obtain disclosure of documents within the power, possession or procurement of the other party, which are relevant to the matters in dispute.  It may assist one party’s case or damage it. A party must disclose relevant documents, notwithstanding that it may damage his case.

The purpose of discovery is to ensure that the full facts relating to the matters in dispute are capable of being presented to the court by the parties. Discovery is said to be necessary for the fair disposal of the action and for saving costs.

Discovery is typically undertaken by the parties’ solicitors.  They are bound by ethical duties to conduct and undertake the process honestly and thoroughly.  They owe duties both to the court and to the other party. The must conduct discover honestly and fairly in accordance with the requirements of the order or agreed discovery.

Discovery may prove to be onerous and expensive.  Discovery is sometimes criticised on the basis that it takes a life of its own, and that focus can be lost on its purpose.  The court is mindful of the burden that may be placed on the parties, particularly in an age where there may be a proliferation documents and e-mail correspondence.

There is a risk that discovery may be invoked in order to place an unfair and unnecessary burden on a party to proceedings. Such a tactic would have itself be an abuse of process and improper.

Discovery may arise in non-court proceedings.  Statutory inquiries under the Tribunal of Inquiries Act provide for discovery of documents against parties with relevant information.  The courts have emphasised the requirement for fair procedures. The tribunal itself make the relevant order.

Applies to Relevant Material

Only relevant documents must be disclosed. It is not permitted to simply “fish” i.e.  engage in a speculative or exploratory exercise. The documents must relate to the issues in question. Relevance means that they should enable one party or the other to advance his case or damage his opponent’s case, as the case may be .They must be necessary in order to deal fairy with the litigation.

The matters in respect of the discovery is requested must be relevant to a matter which is in issue in the proceedings.  They may support either party’s case. Each party must discover the documents irrespective of whose case they support. If the documents are not such as to advance either side\’s case, they should not be discoverable as they are not relevant.

The relevance of documents is measured by reference to the pleadings and particulars.  If they are not founded on the pleadings or do have some other basis of relevance, they will not be discovered.

The duty to discover lies on the person making discovery. Although it is difficult for the court to challenge and go behind failures of discovery, it may do so.  The integrity of the parties and their solicitors is a critical part of the process.

The documents must be necessary to dispose fairly of the proceedings.  The material itself must be likely to contain matter which would be of a substantial assistance to one or other party’s claim.

Documents discovered can only be used for the purpose of the proceedings.  Parties are prohibited from using them for any other purpose.

Application for Discovery

Discovery is procedure by which one party to a dispute can compel disclosure and  production of relevant documents held or other the control of the other party to the dispute. Discovery compels a party to produce documents, even though they help the opponent\’s case and harm the own case. In some circumstances, discovery may available against third parties.

Discovery is not automatically granted. However it will usually be granted or agreed, where it is relevant and appropriate. Discovery must relate to relevant documents. Frequently, the parties will agree to disclose documents voluntarily because they know that the court would  order discovery if an application was made .

In each of Circuit and High Courts, there is a procedure to make a short form application to court for an order for discovery against the other party. In the High Court, the categories of documents and the need for them  must be specified. .

The court rules require that the party seeking discovery first makes a voluntary request in writing, if agreement for discovery is not reached.  Its discovery is not made within that period or agreement reached, then the party seeking discovery may apply to court.

An agreement to discovered arguments is equivalent to a court order. Failure to comply is equivalent to breach off the court order.

This application (a motion) is based on written application with sworn affidavits putting forward the necessity for discovery.  Notice is served on the other party. The matter is decided by the court officers (usually the County Registrar or Master).

Discovery Affidavit and Documents

The party who must make discovery is obliged to swear an affidavit. It must contain  a list of all documents now or previously in his possession or under his control relating to the matters in dispute If the parties do not agree with the scope and extent of disclosure undertaken, either  may apply to court for further orders refining the scope of discovery.

Documents cover any medium. This includes include agreements, notes e-mails graphs documents tapes DVDs etc. Discovery\’s of electronic documentation includes documentation showing that when files were created and amended and deleted .

The  burden of discovery must be reasonable and proportionate to the benefit.The likely benefit of the  discovery should  justify the cost.

Failure to Discover

Failure to discover all relevant document is a contempt of court. The person concerned could be attached and committed to prison for deliberate failure to disclose. The court may also penalise the party who has failed to make discovery or full and proper discovery by striking out the claim or defence. A application may made to the court for such an order where discovery has not been made .

Where discovery has been made, which the other party believes is inadequate or incomplete, the other party may apply to court for further and better discovery

Privilege  From Discovery

Certain documents are immune (so called “privileged”)  from having to be disclosed . Documents passing between solicitor or lawyer and client for the purpose of seeking advice are privileged. So too, are communications in contemplation of litigation or after litigation has commenced which between  the lawyer and  third parties such as a witness expert etc for the purpose the advancing the litigation. The purpose is to enable parties communicate in the context of litigation without fear is having to disclose their discussions or harming their case .

Correspondence and communications made for the purpose of settlements (so called without prejudice statements) are protected from disclosure and from being compelled (in response to a question) in court. This is to protect for the overriding interest of promoting settlements and offers.

A challenge to privilege can be made to court, which will decide the position in the event of a dispute.

Discovery against nonparties

Discovery against Non parties should must be requested voluntarily. If it is refused application may be made to court to compel the third party to discover documents which are relevant to the litigation. Discovery against a non-party will not be made if it is oppressive, of limited relevance, for all ulterior motive or disproportionate .

The affidavit  must set out the documents have a list of documents being discovered . if documents are no longer held this must be specified ..  If there are documents over which privileged is claimed,Tthey must be listed and privilege specifically claimed to . affidavits discovery should be filed in the Courts office and exchange ..

Inspection

A party is entitled to request and take copies of documents referred to in discovery affidavit. Inspection can take place will often take place in solicitors office. The party is entitled to inspect the originals and take copies. Documents produced on inspection may not be used for other purposes.

Failure to Discover

Failure to discover all relevant document is a contempt of court. The person concerned could be attached and committed to prison for deliberate failure to disclose.

The court may also penalise the party who has failed to make discovery or full and proper discovery by striking out the claim or defence. An application may made to the court for such an order where discovery has not been made .

When discovery has been made, which the other party believes is inadequate or incomplete, the other party may apply to court for further and better discovery

Document at Trial

It is possible to give notice to the other party to produce documents referred to a claim or defence. If they are not produced, they may not be relied on.

A third party can be compelled to attend court, with documents This is a witness summons incorporating an order to  bring relevant documents to court.

FoI and Data Protections Access

It is also possible to obtain documentation from governmental bodies under the Freedom of Information Act. Copies of information relevant to an individual personal information can be requested under data protection act .

These are general legislation which apply irrespective of  litigation .

Interrogatories and Commission

Interrogatorries  are formal questions to the other party to proceedings prior to trial. The are equivalent to questions at trial and require a sworn answer. A party may apply to court on a motion to request an order for interrogatoris The application for consent is  made to be Master of the High Court. A copy of the proposed interrogatory is must be  filed .

The procedure may save expense in bringing a witnesses to court. It may be appropriate where, one party has particular relevant information

If  an essential witness  is not available for the trial it may possible to have evidence taken under commission. An application must be made to the Master of High Court . Evdeince by commission may be appropriate  if the witness is il. abroad cannot travel to give evidence. It is generally necessary to agree evidence first before applying to corurt.

A counsel is appointed to act as Commissioner and a direction is made to take evidence at an appointed time . The-legal representatives will normally be present. Once the evidence and cross-examination has taken place, adnote of the evidence is made to the High Court and read out at the full hearing.