Discovery

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An order for discovery means that one (or multiple) parties have to make all documents of a certain class available to the other parties for inspection: r 21.2, UCPR.

  • All documents within the class specified by the court must be made discoverable, regardless of whether the party considers them relevant: Priest v NSW
    • Class of documents should not be too general (otherwise the order is oppressive): r 21.2 (2).
  • No discovery for personal injury unless there are special reasons: r 21.8.
    • “Special reasons” in this context: unusual or different to take the matter the subject of the discretion out of the ordinary course: Priest v NSW.
  • Discovery should only be made after the parties served their evidence, unless there are exceptional circumstances: Practice Note No. SC Eq 11

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [11.120]-[11.260].

Practice Note No. SC Eq 11, Disclosure in the Equity Division, 22 March 2012.

In the Matter of Mempoll, Anakin and Gold Kings (Australia) [2012] NSWSC 1057.

M. Legg (ed), Future of Dispute Resolution LexisNexis (2013), Chapter 7.

Introduction

[1] Discovery is a process where the parties (or one of them) make documents available to one another for inspection. Discovery can be agreed to between the parties, or ordered by the court.

The idea behind discovery is that it promotes a fair trial and decreases the chances of surprise (thus in accordance with the 'cards on the table' approach).[2] It also helps parties obtain evidence for the proceedings.

Problems Caused by the Discovery Process

[3] Discovery causes a lot of problems in civil procedure, because it usually entails massive delay and increased costs (since its costly and complex for both sides to go over all the documents). Additional problems include:

  • Making unnecessarily broad discovery requests
  • Withholding information to which the requesting party is entitled
  • Providing many irrelevant documents to overwhelm the other side (referred to as 'burying a document in discovery').
USG notes: there is a lot more in the BKL textbook (pp. 599-608) about the criticisms of discovery (including two cases).

The Discovery Process

[4] The common law test for discovery is the Peruvian Guano test: a relevant document is discoverable if it would advance a party’s own case or damage that of the adversary. This test was then narrowed by the UCPR r 21.2, which allowed the limitation of discovery to classes of documents (ie, the court can order that only a certain class of documents can be discovered).

The process of discovery is as follows:

  1. Party A files and serves a notice of motion, with a supporting affidavit, seeking discovery pursuant to UCPR r 21.2.
  2. Court may order discovery of a ‘class of documents’: r 21.2 (1) (a).
    • However, the 'class' should not be specified in too generally (which would make discovery oppressive): r 21.2 (2).
  3. Within 28 days of the order (or as specified) Party B prepares a list of documents (r 21.3) divided into two parts:
    1. Documents in the possession of Party B; and
      • 'Possession' includes: ‘Custody’ and ‘power’.
    2. Documents which were in possession of Party B in the last six months. Party B needs to indicate who they believe has possession of the documents.
  4. List is accompanied by supporting affidavit by Party B verifying the list (r 21.4 (2)) and a solicitor’s certificate certifying that advice has been given about Party B’s obligations arising from an order for discovery (r 21.4 (3)). list also states whether privilege is being claimed and the circumstances giving rise to privilege.
  5. Documents are made ‘ readily accessible and capable of convenient inspection ' (r 21.5).
    • This includes being physically kept and arranged in a way so as to achieve this purpose, and identified in a way that enables particular documents to be readily retrieved.
  6. There is a continuing obligation on Party B to make available subsequently discovered documents (r 21.6).
  7. Except with the court’s leave, no information obtained by discovery is to be disclosed or used in other legal proceedings. The exception is where the document has been received into evidence in open court (r 21.7).
  8. The court will not order discovery in personal injury cases unless there are 'special reasons' to do so (r 21.8).

The operation of discovery was illustrated in Priest v NSW:

  • “Special reasons” means something unusual or different to take the matter the subject of the discretion out of the ordinary course.
  • Even after satisfaction of the 'special reasons' required for discovery for personal injuries, the applicant still needs to show that the discretion of the court should be exercised.
  • All discovery is burdensome, but it must not be oppressive in that the class of documents is too general.
  • After the court determines the class of documents, the parties must abide by that class and not exercise their own judgment of whether a document is relevant to the case - only to the 'class' determined by the judge.

Practice Note

Discovery was discussed in Practice Note No. SC Eq 11, Disclosure in the Equity Division], which specified the following:

4. The Court will not make an order for disclosure of documents (disclosure) until the parties to 
   the proceedings have served their evidence, unless there are exceptional circumstances necessitating 
   disclosure.

5. There will be no order for disclosure in any proceedings in the Equity Division unless it is necessary 
   for the resolution of the real issues in dispute in the proceedings.

6. Any application for an order for disclosure, consensual or otherwise, must be supported by an
   affidavit setting out;

        the reason why disclosure is necessary for the resolution of the real issues in dispute in the
        proceedings;
        the classes of documents in respect of which disclosure is sought; and
        the likely cost of such disclosure.

The principles of the practice note were discussed in In the matter of Mempoll, Anakin and Gold Kings (Australia):

  • Whilst the Practice Note does not actually apply to a notice to produce, a notice to produce which was served with the object of avoiding the operation of the Practice Note will constitute an abuse of process (and therefore would be set aside).
  • Special circumstances: "they must be something out of the ordinary; they need not be unique; but however one characterises them they are not "exceptional" at large but "exceptional" because they necessitate disclosure.
  • A situation where highly relevant information is solely or largely in the possession of one party may well give rise to exceptional circumstances for the purpose of the Practice Note.

Discovery and Technology

[5]


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End

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References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 598.
  2. Percy v General Motors Holden [1975] 1 NSWLR 289.
  3. BKL, p. 598-608; ALRC, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1999).
  4. BKL, p. 599.
  5. BKL, p. 613.
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