Discovery is a significant litigation tool. It gives a party the opportunity to access documents that another party possesses. The information in these documents may be crucial in advancing the person’s case. This article explains what discovery is and the process of discovery in New South Wales (NSW) civil proceedings.

What is the Purpose of Discovery?

Discovery reduces the risk of a party being surprised or ambushed at trial. However, some parties may use the process of discovery to impose a resource and cost burden on an opponent. For this reason, courts have the discretion to order discovery, but only after they have considered the parties’ circumstances.

Here, the key consideration is whether the documents sought are relevant to determining the facts in issue. Courts also have the power to limit the extent of discovery. A court can do this if it considers extensive discovery to be oppressive on the party providing the documents.

Discovery in NSW Civil Proceedings

Courts are generally reluctant to order blanket discovery. Instead, parties need to prove that discovery is necessary. During proceedings, the court usually orders discovery after it has defined the issues in a case. This happens following the close of pleadings, such as the statement of claim and defence, and before the exchange of each party’s evidence.

There are some exceptions to this. In the Equity Division of the Supreme Court of NSW, for example, the court does not make an order for discovery until the parties have served their evidence. This aims to reduce the potential scope of discovery and increase the efficiency of proceedings.

How Does Discovery Work?

There are a number of stages in the process of discovery in NSW. 

Application and Order for Discovery

A party files and serves a notice of motion together with an affidavit seeking discovery for a class or classes of documents, or certain samples within a class of documents. A class of documents is specified by:

  • relevance to the facts in issue;
  • a description of their nature;
  • the period within which they were created; or 
  • in such other manner as the court considers appropriate in the circumstances.

The court then hears the notice of motion and may make the relevant order for discovery.

List of Documents

After the court orders discovery of the documents, the party giving discovery has 28 days to prepare and serve on the other party a list of documents. That list deals with all of the documents referred to in the order. The list consists of two parts:

  • part 1: documents in possession of the party giving discovery; and
  • part 2: documents that are not in possession of the party giving discovery, but have been within the last six months before the start of the proceedings.

The list must include a description of the documents. The list should identify the documents that the party giving discovery says are privileged and the circumstances giving rise to privilege. Documents which contain ‘privileged information’ will not be subject to discovery. This includes confidential communication made between a lawyer and client for the dominant purpose of providing legal advice or legal services relating to litigation.

For documents falling within part 2, the party giving discovery must specify who they believe is in possession of the documents.

Making the Documents Available

The party giving discovery must store the documents in part 1 of the list in a way that is readily accessible and convenient to inspect for the other party. 

Within 21 days, following the service of the list, the party receiving the documents can request photocopies of the documents in part 1 from the party giving discovery.

Making Subsequently Found Documents Available

The party giving discovery has a continuing obligation to make documents which subsequently enter their possession available. This is the case so long as the documents fall within the class or classes specified in the order of discovery.

Electronic Discovery

Electronically stored information (ESI) such as emails, files, images, videos and databases is only becoming increasingly prevalent. Accordingly, courts often request that discovery and inspection be conducted electronically where ESI is relevant. This includes parties creating electronic lists of their discoverable ESI and giving inspection by producing databases.

Key Takeaways

The process of discovery and the documents discovered during civil litigation can be crucial to how a case unfolds. Therefore, you should seek professional advice on the strategies and nuances of the discovery process. If you have any questions, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

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