DR 10 - Disclosure and Inspection Flashcards
What must parties do for the Multi-Track disclosure?
Party must:
(1) File a disclosure report 14 days before CMC and (2) discuss/disclose 7 days before CMC.
Does the duty of disclosure end once documents are provided?
No, the duty continues until proceedings are concluded.
Can disclosed documents be used in other cases?
No, unless the court reads or refers to them in a public hearing, grants permission, or the disclosing party agrees.
What is standard disclosure?
A party must disclose:
1. Documents they rely on
2. Documents that hurt their own case
3. Documents that help another party’s case
4. Documents required by practice directions
What counts as a document?
Anything that records information, including emails, photos, texts, voicemails, metadata, digital files, and recordings.
What does ‘control’ of a document mean?
A document is within a party’s control if:
* they physically have it,
* they have a right to possess it, or
* they can inspect/copy it.
Do parties need to search for all possible documents?
No, only a reasonable search considering:
* number of documents,
* cost and effort,
* case complexity, and
* document importance.
How is standard disclosure done?
- Each party prepares a list of documents
- Sent to the other party
- Documents are categorised:
1. Available for inspection
2. Not available for inspection (e.g., privileged)
3. No longer under control
Can sensitive parts of a document be redacted?
Only if:
- The redacted part is privileged
- The information is irrelevant
Can a party choose to disclose a privileged document?
Yes, but this may waive privilege over the entire document or other related documents.
Can a party inspect documents mentioned in pleadings?
Yes, but privilege still applies unless waived.
What does legal advice privilege cover?
- Confidential lawyer-client communications
- Dominant purpose of giving legal advice
- Covers emails, letters, and meetings
Does privilege apply to in-house lawyers?
Yes, but only if acting in a legal capacity.
What does litigation privilege cover?
- Communications between lawyer, client, or third parties
- Dominant purpose: Preparing for litigation
- Litigation must be reasonably in prospect, not just a possibility
What is without prejudice privilege?
Communications made to settle a dispute.
Does a document need to be marked ‘without prejudice’ to be protected?
No, as long as it was made to settle the case.
What does ‘without prejudice save as to costs’ mean?
The document can be used to decide costs, but not liability.
What is an order for specific disclosure?
Application for specific disclosure made when:
- opponent has not complied with the disclosure obligations
- applicant wants something more than what the current disclosure directions provide for
Can a party get disclosure before a claim is filed?
Yes, if:
- Both parties are likely to be in litigation
- The documents would be disclosable if the claim had started
- It would help settle the dispute or save costs
Can a non-party be ordered to disclose documents?
Yes, if the documents affect the case and disclosure is necessary for fairness.
Who pays the costs of non-party disclosure?
Normally, the applicant pays the costs.
What is a Norwich Pharmacal Order?
A court order forcing a non-party to disclose information prior to the proceedings when:
- A wrong has been committed;
- The applicant needs disclosure to initiate legal proceedings; and
- The non-party is not a mere bystander and is able to provide information necessary to enable the wrongdoer to be sued.
