10 Gathering Information and Evidence After Initiation of Proceedings – Chapter 11 omit [11.260-80] 1
Introduction 11.10 1
1 DISCOVERY OF DOCUMENTS 11.20 – in UCPR rr 21.1-8 2
(iii) Discovery Process [11.7] – UCPR r 21.1-8 3
Technology and Discovery – 6
Case study for discovery: Priest v NSW 7
2 SUBPOENA TO PRODUCE [11.140] – UCPR rr 33.1-33.13 11
Setting aside a subpoena 14
3(a) NOTICES TO PRODUCE (UCPR Rr 21.9-21.13) 17
3(b) NOTICES TO ADMIT (UCPR rr 17.1 – 17.7) 17
4 Interrogatories 17
APPENDIX – Gathering info and evidence after commencement of proceedings 18
UCPR rr 33.1-33.13 18
| (i) | What it is: Discovery enables parties to obtain documents from each other. One party seeks documents within a class from the other party. Notes: How to get discovery: Discovery can be agreed between the parties or the court can order it. When: Discovery takes place once pleadings have closed so parties are aware of issues in dispute. Ambit of discovery is defined by court order by reference to a class of documents. |
| (ii) problems caused by discovery process ALRC Seven Network VLRC | Law: CL test Peruvian Guano : a document relevant to a question in issue is discoverable if it would lead to a train of inquiry which would either advance a party’s own case or damage that of the adversary: Temmler; applying Peruvian Guano test – CL test has been limited by UCPR r 21 which confines the scope of discovery to classes of documents. 21.2 Order for discovery (1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or (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 must 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, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact Case: Seven Facts: Mega-litigation. Multiple and separate 7 network – sued a number of parties for engaging in anti-competitive conduct which it claimed forced the closure of c7 which was a producer and distributor of sports channels for Australian pay television platforms. Trial – 120 hearing days, electronic courtroom. Over 12 k documents, would been more if not reject more evidence Parties spend $200 million on legal costs in connection with these proceedings Seven seeking $1billion damages. Now reduced amount claimed to $190-212 million. This would be grossed up to account for income tax, and pre-judgment interest. Tax has to be paid on damages award, so maximum stake in litigation not been much more than total legal costs incurred. Commentary: VLRC report Issues: Abuse: Three categories of discovery abuse: Making unnecessarily broad discovery requests Withholding information to which requesting party is entitled Providing many irrelevant documents to overwhelm other side (or inappropriately conceal documents) Rationale of discovery: avoid trial by ambush. Document destruction: |
Technology and Discovery – Practice Note SC Gen 7 SC on Use of technology
CASE STUDY – Priest
| 1 Party A files and serves notice of motion (with supporting affidavits) seeking discovery pursuant to UCPR r 21.2 | Party A files and serves notice of motion (with supporting affidavits) seeking discovery pursuant to UCPR r 21.2 |
| 2 notice of motion heard | Notice of motion heard and court may order discovery of a ‘class of documents’: UCPR r 21.2 21.2 Order for discovery (cf SCR Part 23, rule 3 (1), (2) and (3); DCR Part 22, rule 3 (1), (2) and (3)) (1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or (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 must 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, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. |
| 3 list documents Party B | List documents: Within 28 days of order (or as order specifies) Party B prepares list of documents (UCPR r 21.3) which is divided into two parts (documents in possession of Party B and documents in possession in last six months by Party B). The list also states whether privileges is claimed in respect of the documents and the circumstances that give rise to privilege being claimed if the documents are not in the possession of party B then Party B needs to indicate who they believe has possession of the documents: UCPR r 21.
|
