Discovery Issues

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.

Application and Order

Court rules contemplate that an application for  discovery be made after the pleadings (i.e. claim and defence) have been finalised.  Voluntary discovery is encouraged.  An application for discovery is not to be made later than 28 days after the action has been set down for trial, or listed for trial, if set down does not have the effect of listing trial.

A discovery order is not usually granted prior to the closing of the pleadings (claim, defence and any counterclaim) other than in exceptional circumstance. It may sometimes be necessary so that the pleadings do not need to be later amended. Discovery will not be allowed, simply to facilitate the plaintiff or defendant to draft his claim or defence.

The  rules require that voluntary discovery is to be requested in the first instance in writing.  It must specify the categories of document in relation to which discovery is sought, and the reason why each category is required.

The court application specify categories of document for which discovery is sought.  The application must be based on affidavit and confirm that discovery is sought for the purpose of   disposing fairly of the proceedings or saving cost.  Reasons must be given why each category of document as required.The former practice of seeking all relevant documents in the other party\’s possession has been reformed.

In effect, the court may order a party to make discovery of documents in its possession if it is satisfied that they are relevant to the proceeding, it is necessary for fairly disposing of the matter or saving costs.

Applies to Relevant Material

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.

Voluntary Disclosure

The requirement to write to the other party may be dispensed with in cases of urgency where the parties consent or where it is appropriate for the court to deal with the matter.

The parties ought, if possible to agree to discover documents.  The agreement has the same effect as a court order. The High court rules provide that discovery must be made in the same manner and form, as if a High Court order had been made.

If a party fails or refuses to make discovery voluntarily, then an application may be made to the Master of the High Court for an order of discovery.  Application is made by way of a motion.  It  must specify the documents, categories of documents and relevance.

The affidavit must set out detail of the proceeding, details of the documents sought and the reasons why each category is required.  Stereotype or formulaic requests are not sufficient.

Application for Discovery

The application must confirm that voluntary discovery has been requested and  refused, or has not been given in the terms requested.  The relevant correspondence should be exhibited. Parties must swear that the documents are necessary to fairly dispose of matter and are relevant.

As with motions generally, the motion may be adjourned if  insufficient time is available to allow  the other party file a replying affidavit. When the matter is heard, Master will consider the pleadings and consider whether the order sought should be grant, refused or made in modified terms.

The court may make an award in relation to costs. Unless otherwise ordered, they become part of the cost of the party seeking discovery. However, if voluntary discovery is not made or made within the reasonable time provided, costs may be awarded at the discretion of the court.

If the order itself is granted in the terms sought, then costs would generally follow to the successful party.  Similarly if it is refused, costs will be granted, to the successful party.  If granted in amended terms, it is likely to be reserved until the final hearing.

If an order is made by the court, it will specify the categories of documents and the periods in which discovery is to be made.  This may be six to eight weeks or longer, if a very substantial quantum of documents is involved.  The order will specify who is to make the affidavit.  The grant or refusal of the order may be appealed, within six days of the perfecting of the order or the refusal, if refused.

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

Making Discovery.

The form of affidavit of discovery is set out in the court rules. It contains schedules setting out in Part 1, the documents relevant to the particular categories ordered or agreed to be discovered which are in the power, possession or procurement of the party concerned.  Part 2 is to state whether the person making discovery  claiming privilege. If so, the nature of the document and the type of privilege claim must be specified.

The schedule to the affidavit is to list documents which the party formerly had under his or her control. It hould be stated in the affidavit when they were last in his possession or control and what their present status is.

The affidavit must swear that the documents listed are complete and that none other are held by the deponent who makes the affidavit.

Documents are principally written documents,  but also include that which is capable of being reproduced in permanent form.  They include graphs, records, X-ray or any medium that gives information.    All tapes, records, discs, music, speech, sound are capable of being documents for this purpose.

Possession of a document does not necessarily mean that it is in the physical custody of the person concerned.  If it is under his control in broad sense, then this is sufficient. A document is  under the power of the party concerned if he is in a position to procure it. He should have an enforceable legal right to obtain it from whoever else holds it, without third party consent.

Sanctions

The party\’s lawyers have obligations to ensure that their clients appreciate the extent of the obligation imposed by a discovery order or agreement.  The lawyer, as an officers of the court, owes obligations to the court in relation to the proper conduct of discovery. The party\’s lawyers must advise  in relation to which documents are relevant to the issues in the proceedings.

A number of sanctions are available against a party who has failed to make proper discovery or to make discovery at all.  The principal remedy is an application to have his pleadings struck out.  This may mean that his defence or claim are wholly negated, which may have the consequence that the party concerned is unsuccessful in the  proceedings.

A further or alternative sanctions against a party who has failed to make proper discovery or to make discovery at all, is  attachment for contempt of court.

If a person fails to discover documents, he may not offer them as evidence that without court consent.  The court will grant consent, only  if the other side has not been prejudiced and the failure to discover is inadvertent or due to a bona-fide mistake as to the whether the document fell within the scope of the order.

Striking out Pleading for Default

The party in whose favour discovery is to be made,  may apply to court to have the entire proceeding struck out, if the party who is to make discovery  has failed to make proper discovery or to make discovery at all.

The party in whose favour discovery is to be made,  may make an application for further and better discovery.

The court has discretion as to whether to grant any one of more of the above orders.  Striking out the claim or defence will usually determine the result of the case. Therefore, court may exercise a discretion not to do so.  If the failure to discover is not due to wilful default or negligence, then the court is unlikely to strike out proceeding.

Where the non-compliance is so serious that it prevents a fair trial, then the court is more likely to strike out the proceeding. Striking out is also more likely where the concealment has been deliberate. Generally, the courts are reluctant to strike out proceedings, unless the failure to make discovery is wilful.

The application to strike out is made by way of motion based on affidavit.  If a party has failed to make discovery when due, the issue of the motion may prompt the making of   discovery and the court may grant an extension. Alternatively, the motion may be adjourned.

Further and Better Discovery

An application seeking further and better discovery  may be brought if a party has grounds for believing that there are other documents in existence relevant to the action within the possession power or procurement of the other party.  There must be some good reason for believing that this is the case.  The grounds for the application may be derived from the documents which have been discovered already, or from other means.

An application for further and better discovery may not generally be made simply because additional documents have come into existence after the initial making of discovery.  However, there may be cases where justice so requires.

Where documents exist at the time the affidavit of discovery was made which only come to  knowledge of the party swearing the affidavit afterwards, there is a continuing duty to discover under the terms of the original discovery.  An order for further and better discovery might be made in relation to them.

The application for further and better discovery is made by way of motion supported by an affidavit setting out the circumstances.  It  may exhibit the agreement for disclosure or order.  Details of the correspondence of discovery made should be exhibited.

Challenging Privilege

The persons in respect of whom discovery is ordered or agreed, must produce for inspection, the documents which are discoverable, but which are not privileged.  The type of privilege claim must be specified.  The claim of privilege must be particularised with reference to the relevant ground of privilege.  A generic claim will not suffice.

An application may be made to challenge privilege by way of a motion to seek inspection. The person who claims privilege must be in a position to substantiate the claim of privilege.  The court may adjudicate on the claim of privilege.  For this purpose, it may examine the documents and relevant circumstances.

In principle it is possible to try to have a deponent cross examined  in relation to claim of privilege.  Other remedies are likely to be more satisfactory. The courts are  reluctant to so allow,  parties may be unfairly prejudiced by cross examination on questions as to whether documents are the subject of legal professional or other litigation in relation to privilege.

Inspection and Cross Examination

Inspection follows from discovery. The court may make an order an application for inspection.

Inspection must be necessary to allow for the fair disposal of the matter concerned.The fact that the party would like to know the contents of the documents is insufficient. It must be necessary for the purpose of disposing fairly of the claim.

The court has power to allow cross examination of deponents on affidavits of discovery. Exceptionally parties may apply by notice to cross examine parties on their affidavit. This may be allowed only exceptionally, where there is no other means to rectify the value of discovery.

Third Party Discovery

In principle it is possible for the court to make an order against a person who is not party to proceedings, in order to discover documents under his possession, custody or power which are relevant to issues before the court.  The procedures in respect of discovery between parties, applies to third-party discovery.

Third-party discovery is exceptional and will not be readily granted.  The requirements are much stricter.The courts will be reluctant to put  a third-party to the trouble of making discovery. It will only be granted where there is no realistic alternative available to deal with the issues in the case.

The court must be satisfied that the third-party has documents in its possession, power and control, which are relevant.  The court may be nonetheless refuse discovery against third-parties, if it is oppressive or if it may prejudice them in a manner which may not be adequately compensated for, by the payment of cost in making discovery.

Although the rules do not require a voluntary request for a discovery to be made to third parties, it is practice to do made.  The application for third-party discovery is brought before the Master.  This is broadly similar to the above mentioned application for inter-party discovery.

The third-party should be given copies of the pleadings so that he can determine the relevance of the documents as a whole.

The party seeking them pre- trial discovery must indemnify the third-party against costs reasonably  incurred in the proceedings and in making discover

Stand Alone Discovery

Exceptionally, the courts may allow proceedings whose principal object is to discover information.  Where there is an alleged breach of intellectual property rights has occurred, proceedings may be allowed with a view to identifying infringers against parties such as Internet Service Providers and Customs authorities.

This will be permitted only against defendants who have been unwittingly involved in some wrongdoing. They may be obliged to give the claimant information in relation to the wrongdoers.

There must be proof of wrongdoing in such cases.  Proceedings of this type are open to abuse and the courts will grant orders sparingly, at most.