Disclosure and Discovery
Disclosure and discovery
This domain tests the scope of documentary and oral discovery, privilege, the implied undertaking and sanctions for non-compliance. Expect questions on relevance, materiality, proportionality, affidavits of documents and examination for discovery.
Core rules
- Parties must disclose documents that are relevant and material to the issues, even if they hurt their case. Proportionality may limit broad requests.
- Privileged documents must be listed but need not be produced. Solicitor-client privilege protects confidential legal advice; litigation privilege protects documents created for anticipated litigation.
- Oral discovery is usually limited by time or number of examinees. Counsel may ask about non-privileged matters relevant to the pleadings.
- Information obtained on discovery is subject to an implied (or deemed) undertaking: it cannot be used for a collateral purpose without court order.
- Sanctions for non-compliance include costs, orders to produce, adverse inference and dismissal or striking of pleadings.
Worked example
A plaintiff fails to list an internal email with in-house counsel that discusses litigation strategy. The email is privileged and must still be listed in the affidavit of documents, but it need not be produced. If the plaintiff instead discloses the email's contents, privilege may be waived.
Traps
- Destroying or failing to preserve relevant documents.
- Over-claiming privilege without evidence.
- Asking privileged questions on discovery.
- Using discovery transcripts at trial without satisfying the rules.