By Kate Davey (Lawyer) and Paul Welling (Principal Solicitor)
Discovery…it’s a necessary step in any litigation and the one that causes clients the most frustration. Outlined below are the basics you need to know.
What is discovery?
Discovery is the process by which parties to litigation provide one another with all documents in their possession which are relevant to the issues in dispute.
Generally, a list of documents is provided by each party and parties then “inspect” the documents, either by reviewing them at the offices of the other party’s solicitor or by requesting that copies be provided.
Discovery is a continuing obligation. If you stumble across additional relevant documents after providing your initial list you must also disclose those documents to the other side.
Consequences of incomplete discovery
Section 56 of the Civil Procedure Act 2010 (Vic) sets out a raft of orders which a Court may make if it finds that there has been a failure to comply with discovery obligations or conduct intended to delay, frustrate or avoid discovery of discoverable documents. The orders available include: preventing the offending party from taking further steps in the proceeding, dismissing part of the claim/defence of the offending party, and/or making a costs order.
It is therefore essential that discovery is taken seriously and undertaken in a thorough manner.
What documents must be discovered?
Subject to specific orders made by the Court, documents which are required to be discovered are any of the following documents, of which you are aware at the time that discovery is given:
- documents on which you rely;
- documents that adversely affect your case;
- documents that adversely affect the opposing party’s case;
- documents that support the opposing party’s case.
Discoverable documents that have been, but are no longer, in your possession also need to be disclosed, along with details as to when you parted with those documents and what you believe has become of them.
What documents do not need to be disclosed?
You may prevent the opposing party from “inspecting” certain documents if those documents are subject to legal professional privilege.
Generally speaking, legal professional privilege protects the disclosure of communications made for the dominant purpose of seeking or providing legal advice, or for use in existing or anticipated legal proceedings.
You may also consider seeking Court orders limiting the disclosure of documents which are “commercial in confidence” (or confidential). A document may be classified in this way if it contains information that, if disclosed, may result in damage to a party’s commercial interests, intellectual property or trade secrets. Whilst these types of documents are often relevant and discoverable, orders may be sought limiting their disclosure to lawyers and counsel for the parties to the proceeding.
How should documents be compiled?
The appropriate method for compiling potentially discoverable documents will differ from case to case.
In our experience, a significant amount of relevant documents are emails.
A good starting point is to identify the people who were involved in the events which are the subject matter of the dispute. Then, conduct searches of the email inboxes (including deleted items) of those individuals. Searches can be further narrowed down by applying a date range, searching specifically for emails between relevant individuals and the opposing party and/or using key words.
Although email is the most commonly used method of communication these days, don’t forget to make additional enquiries of those involved to ascertain whether they have any other documents in their possession. Examples include: notes taken during meetings or telephone conversations, text messages, letters and/or internal documents circulated by a method other than email.
No matter how daunting and tedious the process of discovery may seem, keep in mind that as litigation lawyers we have assisted numerous clients with this process and we have the skills and experience to make the process as pain-free as possible.
