1.10 Disclosure & Inspection Flashcards
What is the nature of disclosure?
Formal exchange
- Disclosure statements
- List of docs after reasonable search for docs in parties’ control
> Info of description recorded
> Electronic docs (readily accessible from computer systems, stored on storage systems, deleted, metadata)
> Widely interpreted
Inadvertent + NOT consider privilege > Waiver
- Certain circumstances
- Intentionally
- Due to accident
- Party voluntarily produces privileged docs > Court/Other party
Docs in control (are/were)
- Physical possession
- Right to possession
- Right to inspect/Take copies
What is required for standard disclosure in fast/multi-track claims?
Fast/Multi-track claims > Personal injury => Parties to give standard disclosure on docs;
- Relied on
- Adversely affecting own/another’s case
- Supports another’s case
- Required to disclose by PD
Multi-track claims > NO personal injury => Standard disclosure (NOT as easily given)
- At least 7 days before CCMC > Agree disclosure directions
- At least 14 days before CCMC > File + serve disclosure report + Electronic Docs Disclosure Questionnaire
What is required for standard disclosure?
Each party serves list of docs on other parties including;
1) Disclosure statement
- Extent of search
- Certifies he understands duty to disclosure + such duty was carried out (to best of his knowledge)
2) Identify docs (convenient order and concise)
3) More probable than not
4) NOT background docs
- Only relevant to background
5) Issues likely to arise
6) Disclosure sought > Clearly described + necessary
What disclosure orders can courts make?
Pre-action disclosure
- Relevant docs (NOT in C’s possession)
- Disclosure request (in writing) > Disclosure, costs
Non-party disclosure
- Applicant (believes/knows relevant docs not disclosed, believed to be in non-party’s possession)
- Disclosure request (in writing) > Disclosure, costs
- Order > Docs/Classes, time and inspection, specify docs not in control + claim right/duty to withhold inspection
Otherwise > Interim app
- Draft order > Prescribed form
Where parties NOT agree on orders before initial CCMC
- Dispense w disclosure
- Standard disclosure
- Specific disclosure
- Disclosure (issue by issue)
What is required for specific disclosure by the court?
1) Party makes disclosure request (notice in writing)
- App for specific disclosure
- Costs
2) Court is satisfied that D failed to comply w disclosure order
- Clear gaps in docs filed + served by potential Ds (identifidable > common chronolog/correspondence)
- Known to exist, not disclosed
- Referred to in correspondence/WS not disclosed
- D’s search > Unreasonably limited (category/date)
=> Party must search for and disclose specific docs
- Otherwise > Interim app (Draft order > NO prescribed form)
What is required for pre-action disclosure?
1) Party request (in writing) for inspection + copy of document
2) Each party should review their lists
- Each party’s compliance w duty of disclosure
- Docs obviously omitted from list
- Docs listed (NOT seen previously)
- Docs withheld by privilege
3) Disclose copy to Party
- Within 7 days
4) Party can inspect doc
- Within 7 days
UNLESS
- Doc no longer in control of disclosing party
- Duty to withhold inspection
- Considers it disproportionate to allow inspection + stated in disclosure statement
What is required for non-disclosure?
Docs likely to support C’s case/adversely affect another’s case
- Clearly identified
Necessary to dispose fairly of claim/save costs
- Benefit justifies expense?
- Balance (C’s interests vs Non-party’s privacy and rights)
- Burden > Non-party
What is required for e-disclosure?
Claims > Multi-track
- NOT personal injury
Electronic docs
- Emails, texts, voicemail
- Word processed docs, databases
- Docs shared on portable devices/servers
- Deleted docs
- Metadata
How can e-disclosure be managed?
Limit by dates/keyword searches
Before 1st CMC > Parties + lawyers must discuss;
- Use of tech > Manage e-docs
- Extent of disclosure > E-doc categories (parties’ control) + ‘reasonable search’ meaning re proceedings concerned
Litigants must ensure costs minimisation
- Efficiently
- Make docs available for inspection
- Disclose relevant docs
- Effectuate overriding objective
What must party completing e-disclosure questionnaires address in prescribed form?
Extent of ‘reasonable search’
Most appropriate method > Undertake doc search
E-docs access > Potential issues
Preserve e-docs
Inspection method
What is privilege? What are the exceptions?
Absolute right to withhold inspection of docs from production
- Opponent/Court/TPs
Exceptions
a) Waiver
- Docs subsequently disclosed/exchanged/inspected
- Docs referred to in statement of case
b) Disclosed (but redacted)
- Remove redactions if referred to at trial
- Privilege over rest of doc > Waived (UNLESS separate subject matter test > Applied)
What are the type of privileges?
Legal advice privilege
- Lawyer (acting as lawyer) > Comms > Client
1) Confidential
2) To seek legal advice from solicitor/provide to Client
Litigation privilege
- Lawyer > Comms > Client/Agent/TP
- After litigation commenced/reasonably in prospect
- Sole/Dominant purpose > Seek or give related advice/Obtain evidence to be used in it/Obtain info leading to obtaining evidence
Common interest privilege
- Docs disclosed to TPs
Joint interest
- TP > Comms > Another party
- JOINT waiver
Privilege vs self-incrimination
- Disclosure may increase likelihood > Prosecution for criminal offence/Subject to penalty
Public interest immunity
- Disclosure may damage public interest
Without prejudice communications
- Attempt to settle disputes
- Comms (explicitly/implicitly) > NO prejudice
When may without prejudice communications be disclosed?
All parties consent
New agreement
W/O prejudice EXCEPT as to costs > Costs hearing required
Non-party seeking disclosure
