Discovery is a compulsory legal process in civil litigation, where each party to the legal proceeding must provide relevant documents to each other party, for inspection.
The purpose of discovery is to ensure that all documents that are relevant to the matters in issue in the legal proceeding are available as evidence to the parties and the Court.
In other words, civil litigation is conducted with each party’s cards facing ‘up’ on the table.
It is a serious matter to withhold relevant documents from the discovery process.
What documents are relevant?
A document will be relevant if it:
- would constitute evidence on any ‘matter in issue’
- contains information which may (not must) either directly or indirectly enable a party to advance its own case or damage an opponent’s case.
What is a ‘matter in issue’?
The matters ‘in issue’ are those matters which are in dispute, as determined by the formal Court documents, primarily the statement of claim and defence.
A matter will not be in issue if it is alleged in the statement of claim and admitted in the defence (eg it is admitted in the defence that an event occurred on a particular date, as alleged in the statement of claim).
However if it is denied that the event occurred, or that it occurred on a particular date, all documents that are relevant to those questions must be discovered eg diary notes, emails, letters, mobile records, text messages.
In determining whether a matter is ‘in issue’ regard will also be had to the conduct of the parties (ie whether they consider that a particular matter is in dispute), and the nature of the legal proceeding.
How is discovery given?
Discovery is given by creating a numbered list of relevant documents using a Court form.
The party giving discovery must do an affidavit which verifies the accuracy of the list of documents.
Each party to the legal proceeding must give its affidavit and list of documents to the other parties.
Each party has a right to inspect and make copies of any document identified in the list of documents.
If you would like assistance with discovery please contact me.
Greg Carter is a freelance litigation lawyer based in Perth, specialising in fixed-fee commercial dispute resolution.
Greg offers a FREE consultation and a ‘no obligation’ quotation.
For more information please call Greg on 0422 406 929 or email firstname.lastname@example.org.
Or see his website www.gregcarter.com.au.