Third Party Discovery

Overview

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.

The Rules of the Superior Court allow discovery against third-parties in all proceedings.

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.

Criteria

Any person not a party to the matter before a Court who appears to the Court to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising in or likely to arise out of the matter or is likely to be in a position to give evidence relevant to such issue, may by leave of the Court upon the application of any party be directed by Court order to answer such interrogatories or to make such discovery or to permit inspection of such documents.

The provisions  apply as if the order of Court has been directed to a party to the action.  The party seeking such order must indemnify such person in respect of costs thereby reasonably incurred.  The costs are deemed costs of that party in the case.

Application for Third Party Discovery

Where a person not a party to the cause or matter before the Court  has access to information which is not reasonably available to a party to the cause or matter, and which the Court is satisfied would not have been procurable by means of discovery made, or answers to interrogatories given by the person, the Court may, on the application of a party by motion on notice to the non-party, and unless it is satisfied that it would not be in the interests of justice that the information concerned be disclosed, make an order directing the non-party who has access to the information to—

• prepare and file a document recording the information; and
• serve a copy of that document on the parties to the cause or matter.

An application  shall be supported by an affidavit sworn by or on behalf of the moving party, which shall set out the grounds on which the moving party believes that:

• the information sought is not reasonably available to the moving party;
• the information would not have been procurable by means of discovery made, or answers to interrogatories
• the information sought is reasonably available to the non-party against whom such an order is sought;
• the information sought is likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and
• disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

The non-party may deliver and file an affidavit in reply.

Order for Third Party Discovery

The Court may make an order only where—

• the information of which disclosure is sought are likely to support the case of the moving party or adversely affect the case of one of the other parties to the cause or matter; and
• disclosure of the information sought is necessary in order to dispose fairly of the claim or to save costs.

The order shall  specify the information or the classes of information which the non-party must disclose; and  require the non-party, when making disclosure, to specify any such information  which is no longer in the non-party’s control; or  in respect of which the non-party claims an entitlement or duty to withhold disclosure.

An order may require the non-party to indicate what has happened to such information which is no longer in the non-party’s control; and may include directions as to the time and manner of disclosure of the information.

Conditions

The moving party seeking an order for third party discovery shall indemnify the non-party in respect of all costs thereby reasonably incurred by that person and such costs borne by the said party shall be deemed to be costs of that party.

An order for third party discovery shall not be made unless:

• the moving party shall have previously applied by letter in writing requesting that disclosure be made voluntarily; and
• a reasonable period of time for such discovery has been allowed; and
• the non-party requested has failed, refused or neglected to make such disclosure or has ignored such request.

In any case where by reason of the urgency of the matter or the consent of the moving party and the non-party against whom such order is sought, the nature of the case or any other circumstances which to the Court seem appropriate, the Court may make such order as appears proper, without the necessity for:

• the prior application in writing  or
• the issue and service of the notice of motion , provided that in any such case, a non-party affected who has not been heard by the Court before the making of such order may apply to the Court by motion on notice to the moving party to set aside or vary such order.

Quasi-Discovery

Discovery may be indirectly made by a subpoena requiring the production of documents.If it is intended, however, for the production of documents at the actual hearing of the action, they must be admissible in evidence.  In principle, the documents are supposed to be identified in the subpoena.

Discovery is generally undertaken after completion of pleadings.  However, the court has power before pleadings closed to order discovery against — for the purpose of identifying other defendants against whom relief might be sought.

A quasi-Norwich Pharmacal order may be made before the closing of pleadings in an action to discover the identity of further parties.  This is commonly granted in actions for so-called Anton Piller Orders in intellectual property cases.

Procedure

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 discovery.

Terms of Disclosure

The disclosure required may take any appropriate form in accordance with the court order.  This may include the production of documents, the requirement to make an affidavit, answer interrogatories or attend court to give oral evidence.

Where discovery is sought from an innocent third party, the court will order the costs to be paid by the applicant.  The normal rule is that the claimant should pay the cost of the defendant joined just for the purpose of making discovery as well as the actual costs of discovery. If however the defendant has been involved in wrongdoing such as facilitating defamation, it may be ordered to pay the cost of the action.