Production of Documents

Production of Documents

The Court may at any time during pendency of an action, order the production by any party on oath, of such of the documents in his possession or power, relating to any matter in question or cause, as the Court shall think fit.  A Court may deal with such documents, when produced, in such manner as shall appear just.

Every party to a matter shall be entitled by a notice in writing, to give notice to another party, in whose pleadings or affidavit or list of documents, reference is made to any document, to produce such document for inspection by or on behalf of the party giving notice or his solicitor and to permit copies thereof, to be taken.

Any party not complying with such notice shall not afterwards be at liberty to put such document in evidence on his behalf in such matter, unless he shall satisfy the Court that such document relates only to his title, where he as a defendant in the matter or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice.  In this case, the Court may allow the same to be put in evidence on such terms as to costs and otherwise as it thinks fit.

Documents Covered

Production and inspection apply to three categories of documents.

• documents relating to the subject matter of the proceedings;
• documents referred to in an affidavit
• documents listed in the affidavit of discovery (this is subject to valid objections on the ground of privilege etc.)

A party who seeks production of documents in any of the above category may  serves a notice to produce.  A party who fails to produce may be precluded from relying on the documents concerned.

An application may be made to court to have the documents produced. The court may order inspection of each of the above types of documents.

Document in Pleadings

Documents referred to in pleadings or documents referring to matters in question in the proceedings are subject to inspection. This is not limited by reference to whether they are within the power or possession of the party.  They are not subject to privilege.

For the above purposes, documents are referred to in affidavits and pleadings without being specifically exhibited or, or even exactly identified.  The reference may be by inference.  Otherwise, a party could avoid disclosure of the documents by drafting.

Documents referred to in the affidavits and pleadings and the subject matter of the matter in question may be sought immediately.

Notice to Produce

A notice to produce may be issued in respect of any of the above categories of documents.  It must be served on the other party in writing.  The particulars are provided by the Court Rules.  It may be served at any time.

Notice to produce documents referred to in pleadings or affidavits is in a prescribed format. The party to whom notice is given shall, within two days from the receipt of such notice, if all the documents referred to have been set out by him in such affidavit or list as is mentioned above,

If the documents referred to in the notice have been set forth in such affidavit or list, then within four days of such notice, he may deliver to the party giving the same, a notice stating a time within three days from the delivery, at which the documents or such of them as he does not object to produce, may be inspected at the office of a solicitor, or in the case of bankers’ books or other books of account, or books in constant use for a trade or business, at their usual place of custody.  He shall state which documents he objects to produce and on what grounds.  The notice is in a prescribed form.

In theory, the documents are made available at the office of solicitors for the relevant party. In practice, parties may simply send copies of the documents to the other party.

If a party served with a notice to produce omits to give such notice of a time for inspection or objects to give inspection or offers inspection elsewhere than at the office of his solicitor, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit.

If a party does not comply with a notice to produce, he may be subject to sanctions in terms of costs or strike out of pleadings. This may be allowed only exceptionally where there is no other means to rectify the value of discovery.

Inspection

A party served with a notice to produce must specify within the time provided for by the rules, time and place for inspection of the documents.  They will generally be inspected at the solicitor’s office for the relevant party.

Inspection is generally undertaken by the party’s lawyer.  In some cases, it may be appropriate that another party inspects.

A party may object to a party inspecting on the basis that he might use the information for collateral purposes and breach confidentiality.  A reasonable objection may be upheld.

Order to Inspect

As discovery is only made after the closing of the pleadings, discovery documents are usually called to be produced at that stage.

The court may make an order on an application for inspection, or the County Registrar or Master in the High Court may order it. The court must adjudicate claims of privilege.

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.

The courts may while a case is pending, order production by any party on oath of such documents in his possession and power relating to any matter in question as the court shall think right. The court may deal with such documents when produced in such manner as it shall think just.

Application for Order

Except in the case of documents referred to in the pleadings or affidavits of the parties against whom the application is made or disclosed in his affidavit or list of documents, such application shall be founded on an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party.

An order shall not be made if, and so far as the Court is of opinion that it is not necessary either for disclosing fairly of the matter or for saving costs.

Where inspection of any business books is applied for, the Court may, instead of ordering inspection of the original book, order a copy of the entries to be furnished and verified by affidavit of a person who has examined the original entries.

The Court may, on application of any party to a matter, make an order requiring any other party to state by affidavit whether any one or more documents, specified in the application, is or are or has at any time been in his possession or power, and if not in his possession, when he parted with the same, and what has become of them.

The application shall be made on affidavit stating that in the belief of the deponent, the party against whom the application is made has at some time had in his possession or power, the documents specified in the application and that they relate to matters in question in the case.

Method of Inspection

Once discovery is agreed or ordered, the party concerned must produce the documents and allow inspection. An order may include a provision that the inspection and searching of documents shall be undertaken by an independent expert or persons agreed by the party or appointed by the Court in default of agreement.

Where the order makes provision for inspection and searching of documents in the manner above, the party seeking the order shall indemnify such independent expert in respect of all fees and expenses reasonably incurred by him.  Fees and expenses shall form part of the costs of the action.

Documents of the same or of a similar nature and not in electronic form, when numerous, shall so far as possible be grouped together and numbered or otherwise sufficiently marked so as to be identifiable.

When inspection of any business documents is applied for, the court may, instead of ordering inspection of the original document, order that a print or copy of any entries be furnished and verified by the affidavit of some person who has examined it. The affidavit must state whether or not there are any alterations, erasures, etc., in the original documents.  Notwithstanding that a print copy is supplied,  the court may order an inspection of the printed document from which the printed copy is made.

Objection to Production

An objection may be taken to the production of documents on the basis that they are privileged.  There are a number of other bases of objection.  Where the party has obtained the documents in other proceedings, he may be under and undertaking not to use them for any other purposes.

If the party from whom discovery of any kind or inspection is sought, objects to the same or any part of it, the Court may, if satisfied that the right to the discovery or inspection depends on the determination of any issue or question in dispute in a matter, or that for any other reason, it is desirable that any issue or question in dispute in the matter should be determined before deciding upon the right to the discovery or inspection, order that the issue be determined first and reserve the question as to the discovery or inspection.

Where on an application for an order for inspection, privilege is claimed, the Court may inspect the documents for the purpose of deciding as to the validity of the claim for privilege.

Privilege v Confidentiality

There is no general principle by which documents are protected from discovery by confidentiality alone.  However, the court may have regard to the fact that the documents are confidential and that to order disclosure would breach confidence.

Certain information might be particularly sensitive to the interest of third parties, including, for example, employees thereby affected.  The court balances the claim to confidentiality against the public interest in the fair disposal of proceedings by the party seeking discovery. Steps may be taken to protect confidential documents by the terms of the order for discovery.

The fact that the documents are in the joint possession of the respondent and a third-party is a relevant consideration.  The fact that alternative means of proof are available.

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.

General Notice to Produce

The court rules make provision for general notice to produce.  This is different to the procedure above.  It requires the party served to produce the relevant documents at trial.

Generally, it is in a pro forma form referring to all books, letters, copies and documents etc., relating to matters in question. Once served, secondary evidence is permitted to be admitted to the documents if they are not produced.