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B1 IN THIS CHAPTER we discuss changes recently made or contemplated in other jurisdictions, consideration of which we believe is of most assistance to our discussion of discovery.
B2 As from 1 May 1994 there were adopted in Queensland new rules now to be found in Chapter 7 of Part I of the Queensland Uniform Civil Procedure Rules 1999.[27] They are concerned with what was once called discovery but is in those rules rechristened “disclosure”.
B3 Rule 211 carves down the width of the Peruvian Guano test and usefully spells out what is meant by “in issue”:
211.(1) A party to a proceeding has a duty to disclose to each other party each document—
(a) in the possession or under the control of the first party; and
(b) directly relevant to an allegation in issue in the pleadings; and
(c) if there are no pleadings—directly relevant to a matter in issue in the proceeding.
(2) The duty of disclosure continues until the proceeding is decided.
(3) An allegation remains in issue until it is admitted, withdrawn, struck out or otherwise disposed of.
B4 Rule 212(1)(b) usefully clarifies that documents relevant only to credit do not need to be discovered. Rule 212(1)(c) removes the obligation to discover identical copies. Rule 212(2) makes a policy change irrelevant to the current discussion:
212.(1) The duty of disclosure does not apply to the following documents—
(a) a document in relation to which there is a valid claim to privilege from disclosure;
(b) a document relevant only to credit;
(c) an additional copy of a document already disclosed, if it is reasonable to suppose the additional copy contains no change, obliteration or other mark or feature likely to affect the outcome of the proceeding.
(2) A document consisting of a statement or report of an expert is not privileged from disclosure.
B5 Rule 217 may be thought useful in requiring disclosure of documents in a user-friendly fashion rather than lumped together in an unsorted haystack:
... by offloading an avalanche of unsorted files on the party demanding discovery, hoping that the searcher will be so exhausted that the damaging items will be overlooked or never reached.[28]
as Ipp J of the Supreme Court of Western Australia once described it.
217.(1) This rule applies if a party discloses documents by producing them.
(2) The documents must be—
(a) contained together and arranged in a way making the documents easily accessible to, and capable of convenient inspection by, the party to whom the documents are produced; and
(b) identified in a way enabling particular documents to be retrieved easily on later occasions.
(3) The party producing the documents must—
(a) provide facilities (including mechanical and computerised facilities) for the inspection and copying of the documents; and
(b) make available a person who is able to explain the way the documents are arranged and help locate and identify particular documents or classes of documents; and
(c) provide a list of the documents for which the party claims privilege.
(4) The arrangement of the documents when in use—
(a) must not be disturbed more than is necessary to achieve substantial compliance with subrule (2); and
(b) if the party to whom the documents are produced for inspection so requires—must not be disturbed at all.
(5) For subrule (2), the documents may—
(a) be contained by files, folders or in another way; and
(b) be arranged—
(i) according to topic, class, category or allegation in issue; or
(ii) by an order or sequence; or
(iii) in another way; and
(c) be identified by a number, description or another way.
(6) The person made available under subrule (3)(b) must, if required by the person inspecting the documents—
(a) explain to the person the way the documents are arranged; and
(b) help the person locate and identify particular documents or classes of documents.
B6 Part 23 of the New South Wales Supreme Court Rules was significantly amended in July 1996.
B7 Rule 23.2 provides for limited discovery as of right:
23.2. (1) A party (party A) may by notice served on another party (party B) require party B to produce for the inspection of party A:
(a) any document (other than a privileged document) referred to in any originating process, pleading, affidavit or witness statement filed or served by party B;
(b) any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue.
(2) The maximum number of documents which party A may require party B to produce in reliance on subrule (1)(b), whether by one or more notices, is 50.
(3) Party B, upon being served with a notice under subrule (1), shall within a reasonable time:
(a) produce for the inspection of party A such of the documents as are in the possession, custody or power of party B;
(b) in respect of any document which is not produced, serve on party A a notice stating in whose possession the document is, to the best of the knowledge, information and belief of party B, or that party B has no knowledge, information or belief as to that matter.
(4) A notice under subrule (1) may specify a time for production of all or any of the documents required to be produced. If the time specified is 14 days or longer after service of the notice it is to be taken to be a reasonable time for the purpose of subrule (3) unless the contrary is shown. If the time specified is less than 14 days after service of the notice it is to be taken to be less than a reasonable time unless the contrary is shown.
B8 Rule 23.3 provides for court-ordered specific discovery:
23.3. (1) The Court may, on the application of a party or of its own motion, order that any party (party B) give discovery to any other party (party A) or parties (each of which is included in the expression “party A”) of:
(a) documents within a class or classes specified in the order;
(b) one or more samples (selected in such manner as the Court may specify) of documents within such a class.
(2) A class of documents shall not be specified in more general terms than the Court considers to be justified in the circumstances.
(3) Subject to subrule (2), a class of documents may be specified:
(a) by relevance to one or more facts in issue;
(b) by description of the nature of the documents and the period within which they were brought into existence;
(c) in such other manner as the Court considers appropriate in the circumstances.
(4) The effect of an order for discovery under subrule (1) is that the parties involved are required to comply with the succeeding provisions of this rule.
(5) Party B must, within 28 days of the order being made (or of notice of the order being received by party B, if party B was not present or represented when the order was made) or such other period as the Court may specify, serve on party A:
(a) a list, complying with subrule (6), of all the documents or samples specified in the order (other than excluded documents) which:
(i) are in the possession, custody or power of party B; or
(ii) are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B;
(b) an affidavit made in accordance with subrule (7) stating:
(i) that the deponent has made reasonable enquiries and:
(A) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B other than those referred to in the list of documents;
(B) believes that the documents in part 1 of the list are within the possession, custody or power of party B;
(C) believes that the documents in part 2 of the list are within the possession or power of the persons (if any) respectively specified in that part;
(D) as to any document in part 2 in respect of which no such person is specified, that the deponent has no belief as to whose possession or power the document is in; and
(ii) in respect of any document which are claimed to be privileged documents, the facts relied on as establishing the existence of the privilege; and
(c) where party B is represented by a solicitor, a certificate by that solicitor stating:
(i) that the solicitor has advised party B as to the obligations arising under an order for discovery (and where party B is a corporation, which officers of party B have been so advised); and
(ii) that the solicitor is not aware of any documents within any of the classes specified in the order (other than excluded documents) which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B, other than those referred to in the list of documents.
B9 Rule 23.3(9) and (10) make provision for facilitating inspection:
(9) Party B shall ensure that the documents described in part 1 of the list (other than privileged documents) are:
(a) at the time the list of documents is served on party A and for a reasonable time thereafter, physically kept and arranged in a way that makes the documents readily accessible, and capable of convenient inspection by party A; and
(b) at the time the list of documents is served on party A and until completion of the trial of the proceedings, identified in a way that enables particular documents to be readily retrieved.
(10) Within 21 days after service of the list of documents, or within such other period or at such other times as the Court may specify, party B shall, on request by party A:
(a) produce for inspection by party A the documents described in part 1 of the list (other than privileged documents);
(b) make available a person who is able to, and does on request by party A, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents;
(c) provide facilities of the inspection and copying of such of the documents (other than privileged documents) as are not capable of being copied by photocopying;
(d) subject to an undertaking being given by the solicitor for party A to pay the reasonable costs thereof (or if party A has no solicitor, subject to party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of the use thereof), provide photocopies of, or photocopying facilities for the copying of, such of the documents as are capable of being copied by photocopying.
B10 The obligation under Rule 23.3 to list documents does not extend to “excluded documents” defined in Rule 23.1(b) as follows:
(b) “excluded documents” means in relation to proceedings, subject to any order of the Court to the contrary:
(i) any document filed in the proceedings and any copy thereof;
(ii) any document served on party A (as described in rule 3 (1)) after the commencement of the proceedings and any copy thereof;
(iii) any document which wholly came into existence after the commencement of the proceedings;
(iv) any additional copy of a document included in a list of documents under rule 3 (5), which contains no mark, deletion or other matter, relevant to a fact in issue, not present in the document so included; and
(v) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in a list of documents under rule 3 (5);
B11 There is in Rule 23.1(d) a definition of relevance as follows:
(d) a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.
B12 Order 15 Rule 2 narrows the scope of what must be discovered by way of general discovery:[29]
Discovery on notice
(1) A party required to give discovery must do so within the time specified in the notice of discovery (not being less than 14 days after service of the notice of discovery on the party), or within such time as the Court or a Judge directs.
(2) A party must give discovery by filing and serving:
(a) a list of documents required to be disclosed; and
(b) an affidavit verifying the list.
(3) Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given:
(a) documents on which the party relies; and
(b) documents that adversely affect the party’s own case; and
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case; and
(e) documents that the party is required by a relevant practice direction to disclose.
(4) However, a document is not required to be disclosed if the party giving discovery reasonably believes that the document is already in the possession, custody or control of the party to whom discovery is given.
(5) In making a reasonable search for subrule (3), a party may take into account:
(a) the nature and complexity of the proceedings; and
(b) the number of documents involved; and
(c) the ease and cost of retrieving a document; and
(d) the significance of any document likely to be found; and
(e) any other relevant matter.
(6) If the party does not search for a category or class of document, the party must include in the list of documents a statement of the category or class of document not searched for and the reason why.
In addition Order 15 Rule 3 empowers the Court to prevent “unnecessary discovery”:
Limitation of discovery on notice
(1) The Court may, before or after any party has been required under rule 1 to give discovery, order that discovery under rule 2 by any party shall not be required or shall be limited to such documents or classes of documents, or to such of the matters in question in the proceeding, as may be specified in the order.
(2) The Court shall, on application, make such orders under subrule (1) as are necessary to prevent unnecessary discovery.
The prevailing culture is best understood by reference to the terms of Practice Note No 14 issued on 3 December 1999:
1. Practitioners should expect that, with a view to eliminating or reducing the burden of discovery, the Court:
a. will not order general discovery as a matter of course, even where a consent direction to that effect is submitted;
b. will mould any order for discovery to suit the facts of a particular case; and
c. will expect the following questions to be answered:
i. is discovery necessary at all, and if so for what purposes?
ii. can those purposes be achieved:
• by a means less expensive than discovery?
• by discovery only in relation to particular issues?
• by discovery (at least in the first instance – see (iii)) only of defined categories of documents?
iii. particularly in cases where there are many documents, should discovery be given in stages, eg initially on a limited basis, with liberty to apply later for particular discovery or discovery on a broader basis?
iv. should discovery be given in the list of documents by general description rather than by identification of individual documents?
2. In determining whether to order discovery, the Court will have regard to the issues in the case and the order in which they are likely to be resolved, the resources and circumstances of the parties, the likely cost of the discovery and its likely benefit.
3. To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15, rule 2(3).
B13 A new code for England and Wales came into force on 26 April 1999. It was preceded by an interim[30] and a final31 report by Lord Woolf to the Lord Chancellor. Part 31 deals with what is called (in imitation of the Queensland innovation) “disclosure”. Part 31 is of limited use to New Zealand as a precedent because its provisions form part of a set of rules explicitly designed to tailor the procedure in each case to fit the complexity and the amount at stake in the particular piece of litigation and to further that objective by the machinery of a regime of active case management far stronger than anything to be found in the New Zealand High Court Rules. It is, however, useful to note the language of Civil Procedure Rules 31.6 and 31.7. The first sets out a substitute for the Peruvian Guano test. The second contains an interesting definition of the extent of a discovering party’s search obligation:
6.6 Standard disclosure requires a party to disclose only –
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.
31.7(1) When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).
(2) The factors relevant in deciding the reasonableness of a search include the following—
(a) the number of documents involved;
(b) the nature and complexity of the proceedings;
(c) the ease and expense of retrieval of any particular documents; and
(d) the significance of any document which is likely to be located during the search.
(3) Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document.
B14 The Law Reform Commission of Western Australia in September 1999 published its final report on a review of that State’s criminal and civil justice system.[32] Its present procedural code in relation to discovery is at much the same stage as that of New Zealand. It is not proposed to discuss the recommendations concerning discovery contained in the final report, which are very much dependent on case management proposals that do not readily fit the current New Zealand position. Our purpose in mentioning the work done in Western Australia is to acknowledge that the treatment of discovery in the consultation paper preceding its final report[33] is quite the best survey that we came across in our research and one that we relied on in preparing the present discussion paper.
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URL: http://www.nzlii.org/nz/other/nzlc/report/R78/R78-Appendix-2.html