Making Discovery

Affidavit of 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 & Possession

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.

Responsibility of Solicitor

A solicitor has a responsibility to ensure that discovery is made in full.  The solicitor as an officer of the court, owes a duty to go through the documents disclosed by his client, to ensure that no relevant document is withheld from disclosure.  He need not necessarily inspect all documents.

The solicitor must explain to his client the obligation to disclose all relevant documents in his possession.  He cannot however merely explain the obligation and leave it at that. The solicitor must explain the scope and obligations entailed by discovery.

As an officer of the court, the solicitor must not simply allow his client to make up whatever affidavit he thinks fit.  If his client will not give him the requisite information or his client swears an affidavit which the solicitor knows not to be correct, he must withdraw from the case.

The solicitor must take reasonable steps to ascertain the true position. He must take steps to investigate where he is concerned that the client may not have fully disclosed all relevant documents.  Ideally, the solicitor should review all documents and consider whether they are relevant.  The Solicitor should take steps at an early stage in the proceedings to ensure that documents are preserved.

Ongoing Obligations

The obligation to make discovery is ongoing.  If new documents come within the person’s possession or control, he has a duty to discover them.  The principle does not apply to new documents other than in exceptional circumstances.

Exceptionally, a court may grant an order for further discovery of new documents.  The party seeking them must specify the documents concerned.  There must be a special reason why the exception should not apply.

The court must be satisfied the documents are not otherwise available.  There must be more than a general probability of relevance. There must be  a specific importance and relevance of a kind that can be identified specifically.

Variation

Any party concerned by the effect of an order or agreement for discovery, may by notice of motion to each other party concerned, apply to the court for an order varying the terms of the discovery order or agreement.  The court may vary the terms of order or agreement, if it is satisfied that further discovery is necessary for disposing fairly of the case or for saving costs or where the discovery originally ordered or agreed is unreasonable,  having regard to the costs and the burden of providing the same.

The application shall not be made unless the applicant has previously applied by letter in writing to the other party, specifying the variation, furnishing the reasons it is sought and requesting agreement, and a reasonable time has  elapsed and the party has failed, refused and neglected to agree on the variation.

Further and Better Discovery

It may be alleged that discovery made is inadequate.  In this case, an order may be made on foot of an application for further and better discovery.  An order for further and better discovery may be made, where there is reasonable suspicion that further relevant documents are in the defendant’s possession or control.

The court will look at the affidavit of discovery, documents referred to in the affidavit and the pleadings.  It will only look behind these documents in limited cases. Where the above sources give grounds for believing that documents have been omitted, the court may make an order on application.

Another ground for further and better discovery arises if the party who has made discovery has misconceived the case.  For example, this may occur where the party concludes that  a particular document is irrelevant, but the court determines it to be relevant.  If court believes that had he conceived of  the case properly and taken a proper view of the law, he would have disclosed the documents, it may order further and better discovery.

Further and Better Application

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.

Use of Documents

Documents discovered may not be used to found other causes of action.  Otherwise, relationships of confidentiality might be wholly prejudiced.

A party who receives discovery or inspecting documents undertakes that he shall not use them for any purpose other than the proper conduct of the proceedings in which they are discovered or produced.  He is prohibited from using the documents for any other purpose.

To do so would constitute contempt of court.  The court has inherent jurisdiction to take steps as are necessary to regulate the production of documents and to prohibit abuse and infringement of this principle.

Leaking of documents is a breach of undertaking.The implied undertaking is given for the person in whose favour the discovery agreement or order for inspection is made. The implied undertaking extends to other persons who come into possession of the documents.  This would include witnesses and the parties themselves.  The implied undertaking is owed to the court.

The principle is based on the invasion of private rights constituted by discovery.  It should be allowed no further than absolutely necessary for the course of justice in the particular case.

Voluntary Disclosure

The English courts indicate that the privilege does not apply to documents voluntarily disclosed.  Disclosure  undertaken pursuant to Court Rules is likely to differ.

The Irish Court Rules provide that an agreement to make voluntary undertaking has effect as if directed by an order of court.  An order attracts the implied undertaking.The undertaking extends both to the appropriate use of the documents and the misuse of information contained in them.  It also extends to information derived.

Implied Restriction Issues

If however the information is derived from an independent source, it may be used.  The use of documents obtained in one proceedings for the purpose of another breaches the undertaking.  This does not apply to ancillary discovery where proceedings are for the purpose of discovery in itself.

The party who is giving the implied undertaking may be released from it by court.  Leave of court is required and is sought on affidavit.  The undertaking will only be modified if special circumstances are shown and it would not occasion injustice to the party making discovery.

The undertaking survives notwithstanding that that documents are read in open court.  That fact that there is an inevitable degree of publicity does not justify widespread dissemination of the material for an ulterior purpose.

An alternative difficulty of this view is that a transcript of may be available and that transcript itself may be used.