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What Does Discovery Mean in Civil Litigation Cases
Andrew Byrnes Law Group • August 3, 2020
In ACT and NSW civil litigation, discovery is the legal procedural process of making the parties to the case aware of the documents relevant to the proceedings, both currently or formerly in possession of the parties. It also involves making these documents available for inspection where appropriate. Both parties involved in the case must undertake the discovery process, and if a record or document were previously in a party’s possession but is not any more, one would need to specify when they had the file and who now holds it.
Discovered documents are not part of the evidence in the case until they are tendered in court proceedings. Once the court admits it into evidence, though, it becomes part of public record. Parties should consider this when thinking of submitting sensitive documents for discovery; consulting with a civil lawyer in Canberra allows you to gauge whether you are required to disclose a record or document through discovery or not.
The client-lawyer privilege (thought of as the duty of confidentiality lawyers owe to clients for communications clients have with lawyers for the dominant purpose of receiving legal advice) extends to documents a party uses while receiving advice about their case; as such, they cannot be entered into discovery. Materials such as clients interview notes, transcripts of such meetings, and emails exchanged between client and lawyer are exempt.
It is in the interest of all parties, though, to receive access to all documents and information needed to clarify the position each party should take during the court hearings. Discovery is also a way for both parties to find a new angle or path of inquiry—the discovered material allows both parties to obtain informed advice on their prospects based on the evidence uncovered and to prepare strategies for court.
Discovery involves each party filing an affidavit listing and affirming all existing relevant documents that were and are in each party’s possession. If a party receives irrelevant or unintentionally disclosed material, they must destroy it as soon as possible. Documents provided for discovery in one case must also be destroyed after the proceedings; these documents cannot be used in future litigation.
Which documents are required to be disclosed as part of the discovery process?
The documents provided in discovery are ones disclosed in a list of documents, usually following the close pleadings. It is part of the pre-trial procedure. Pursuant to Rule 605 of the Court Procedures Rules 2006 (ACT), a discoverable document is any relevant document (either relevant directly or indirectly to a matter in issue in a proceeding or mentioned in a pleading) that has writing, figures, marks, numbers, perforations, or messages of any kind that have meaning and may be deciphered by someone qualified for interpretation.
In a boundary dispute between neighbours, for instance, e-mail exchanges between the parties about the type of fence, colour, and location may be discoverable. In contrast, a document about one of the parties to the dispute having an affair is not relevant to the proceedings and will be unlikely to affect the case.
The court, however, takes into consideration that there may be indirect causation between events. If the civil lawyer and the party presenting this evidence can link it back to their argument, it may be discoverable.
Either party may only use the discovery documents for the reasons they were received. Otherwise, the court will stop improper use and even punish the party misusing materials. After documents are discovered, either party may use any of the materials as evidence in open court in that proceeding. In certain circumstances, this risk can be enough for the parties to settle privately to avoid trial.
What happens if a party does not comply with the disclosure and discovery requirements?
There can be severe consequences for not adhering to the discovery process. If the list of documents affirmed under affidavit is ruled as inadequate or incomplete, the court may order that party to comply.
If the party is still unable to meet the requirement, it could be a reason for the court to dismiss the claim, whether partly or wholly. In addition, you might receive cost orders that cover legal and court fees and the other party’s expenses in presenting their case.
Conclusion
Discovery is an integral part of ACT civil court proceedings. The documents discovered by both parties must be those that relate to a fact in issue in a proceeding. These documents may enter public record once the court accepts them for trial purposes. As such, decisions about whether to include a document or not should be considered forensically with care but in compliance with your discovery obligation.
For results-focused litigation lawyers, get in touch with Andrew Byrnes Law Group today. Our Canberra civil lawyers and commercial lawyers are committed to sorting out disputes and delivering expert legal representation to our clients. Get in touch with one of our lawyers today.
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