Inspection Flashcards
What are the exceptions to a party’s right to inspect documents?
a. the document is no longer in the disclosing party’s control;
b. allowing inspection would be disproportionate.
c. the disclosing party has a right or duty to withhold inspection i.e. it is privileged.
What must a party do if they believe allowing inspection would be disproportionate?
If a party disclosing documents thinks that it is disproportionate to permit inspection of a certain category/class of documents to be disclosed then it is not required to permit inspection, but it must state in its disclosure statement (usually contained in the party’s list of documents) that inspection is not permitted and that allowing inspection would be disproportionate.
When can inspection not be refused on the ground that it would be disproportionate?
Inspection cannot be refused on this ground where the reason for disclosure is that a party wishes to rely on the document, or that a PD requires disclosure.
If a document falls within the scope of right or duty to withhold inspection, what must the party do?
If a document falls within the scope of the order for disclosure made by the court and it is privileged, its existence must still be disclosed: it can only be withheld from inspection.
What are the main types of privilege?
a. legal advice privilege
b. litigation privilege
c. without prejudice communications
Does confidentiality/commercial sensitivity alone justify redaction?
No.
What are the two main circumstances in which redaction is permitted?
- If there is a clear and distinct part of the document that does attract privilege but the reminder does not.
- If the document is totally irrelevant to the dispute. So information that is confidential / commercially sensitive and irrelevant is generally redacted.
Where must redacted documents be listed in the documents list?
When it comes to listing redacted documents in a disclosure list, the redacted version of the document will be listed in the first part of the list of documents and will be made available for inspection with the appropriate parts covered. The un-redacted version will be listed generically in the second part of the list of documents – inspection refused.
Does a party have a right to waive privilege?
It is possible for a party to allow inspection of a privileged document if it considers that the document helps its case.
However, a party does not have an unrestricted right to determine precisely what it wishes to waive privilege over.
What happens if a party waives privilege in part of a wholly-privileged document?
Waiver of privilege in part of a wholly-privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with an entirely-different subject matter: a party cannot `cherry pick’ certain parts of a privileged document to reveal.
Can a waiver of privilege in some document lead to privilege being lost in other documents?
Waiver of privilege in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving the privilege not to put those documents before the court / opponent too (for example, if they all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood).
What does “once privileged, always privileged” mean?
If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings unless something takes place to cause the privilege to be lost, such as waiver.
Who is the burden of proof on to establish a document is privileged when there is a dispute between the parties?
Where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it.
Can parties inspect documents disclosed in statements of case and or other specified documents?
As well as inspecting documents disclosed pursuant to a court order, a party can inspect a document referred to in a statement of case, witness statement, a witness summary, am affidavit and an experts report.
How are documents referred to in statements of case or other specified documents dealt with?
Case law suggests this right is subject to the usual rules on privilege. Therefore, privilege of a document is not lost simply by reference to a document in a statement of case or witness statement, and the court in any even also has a general discretion to refuse inspection.
However, reference to a document in a statement of case / witness statement could amount to waiver of privilege depending on the circumstances, and so parties should tread carefully in this regard.
