Discovery: a necessary evil?

What is discovery?  

Discovery is a critical step in every form of litigation. The discovery process requires all parties to legal proceedings to list all documents they hold or have held that are relevant to the issues in dispute and to allow the inspection of almost all of them. This includes documents that parties may have ordinarily thought they were entitled to keep private and documents which support the other side’s case that they may not wish to, but must, disclose.

Whilst the process may differ between the various litigation and dispute resolution jurisdictions and forums, it generally requires the parties to provide a list (usually, on oath) of relevant documents which are or were in their possession, custody, or power. ‘Possession, custody or power’ is broadly defined but may include documents held by third parties or subsidiaries. It may require a party to obtain the return of documents held by a third party. This means a party will need to list and allow inspection of these documents (if they have a legally enforceable right to inspect or obtain possession of them). 

All parties to the proceedings may inspect each other’s discovered documents, except for those that are subject to claims of ‘privilege’ or ‘confidentiality’. The law of privilege is complex and the risk of inadvertent disclosure of privileged material particularly needs to be managed carefully. We recommend obtaining legal advice if you have any concerns about privileged documents.

Why do I have to give discovery?

The purpose of discovery is to ensure procedural fairness by:

  • permitting each party to obtain a complete understanding of the others’ evidence;
  • trying to avoid circumstances in which any party feels surprised or ambushed prior to trial; and
  • reducing costs by encouraging settlement at the earliest point of the dispute.

Unfortunately, discovery does not always achieve these objectives. Instead, the process can be drawn out and costly if it is not managed properly. The breadth and scope of relevant documents to be discovered is often left to the parties to reach agreement on. Failure to properly define the scope of discovery can lead to a significant number of documents having to be reviewed and collated, many of which are irrelevant to the issues in dispute. The consequence of a poorly managed discovery is that parties are left with unnecessary legal costs and delays in resolving the dispute.

At Lavan, we are always mindful of managing the discovery or document disclosure process efficiently and cost effectively. This includes using electronic discovery software and technology assisted review, where appropriate.  Keep an eye out for our publication about the use of technology to assist with discovery in the coming months. 

What do I need to discover or disclose?

Parties must disclose all documents relevant to the issues in dispute. A ‘document’ includes ‘any record of information’ and includes electronic means by which sounds, transmitting data, and visual images may have been recorded or stored. This includes notebooks, letters, books, diaries, minutes of meetings, photos, plans, maps, drawings, electronic messages by email or via mobile applications, tapes, films, and data on hard drives. Metadata associated with the creation and alteration of electronic data is also considered a document.  

Given the digital world in which we live and do business, this means that a party may be required to disclose a significant volume of material, even in smaller claims. 

WARNING: If you think that you might be involved in litigation in the future, or if you are currently involved in litigation, you should immediately take active steps to prevent relevant information from being lost or destroyed. You should also suspend any automatic overwrites to preserve any electronic data from being destroyed. Failure to do so may adversely impact your case, as set out below. 

What if I don’t want to disclose my documents?

The obligation to give discovery is an onerous one. To discharge it, you must make, or cause to be made, all reasonable enquiries to locate all your discoverable documents. It is also a continuing obligation. Further discovery must be made immediately after a party becomes aware of a relevant document until the final judgment of the dispute.

Destruction of documents to avoid giving discovery is a serious matter and may amount to contempt of court. Further, if a party fails to disclose a document, the court may refuse to let them rely on that document and/or postpone any trial, at their cost. Failure to fulfil a discovery obligation is a serious matter that carries sanctions. In the most serious of cases, a party’s right to prosecute or defend a case may be disallowed for repeated breaches of the obligation. It is therefore essential that discovery be as complete as possible.

Conclusion

The court (and other dispute resolution forums) will insist on a high degree of accuracy when giving discovery. If you have concerns about your discovery obligations, are contemplating commencing proceedings or need assistance in defending proceedings, contact Iain Freeman, Cinzia Donald or Millie Richmond-Scott.