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Gathering Info And Evidence After Trial Notes

Law Notes > Litigation - Civil Procedure Notes

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Table of Contents

10 Gathering Information and Evidence After Initiation of Proceedings - Chapter 11 omit [11.260-80]
Introduction 11.10 Rationale of gathering info:

* Ways to gather information in civil cases using UCPR

* So you can determine strength and weaknesses of claim/defence.

* Promotes settlement.

* Reduces surprise; puts parties on an equal footing at the trial; helps define and highlights all the issues in dispute; may reduce or save costs by promoting settlement or reducing the issues in dispute and limiting the scope and length of the trial. Various mechanisms in UCPR

* Two ways to get information: (a) by agreement between parties (consent) or (b) obtaining court order (parties required to file notice of motion seeking specific orders together with an affidavit which is evidence that supports the order/s being made.

* Two sources of information: parties or from third parties Actual ways to get info:

* Ways to get information under UCPR:

1. Discovery

2. Subpoenas

3. Notices to (a) produce and (b) admit

4. Interrogatories

* (Note that these mechanisms are only available to parties after pleadings have been filed and have usually closed - except for preliminary discovery under Ch 5) Other ways to get information: (1) Eg request for info under FOI (2)Get private investigator Note: Subpoenaed docs - you give to registry. Discovery docs - you give to other party

1 DISCOVERY OF DOCUMENTS 11.20 - in UCPR rr 21.1-8 Overview (i) intro (ii) Problems caused by discovery process 11.30

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(i)

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(iii) Discovery process What it is: Discovery enables parties to obtain documents from each other. One party seeks documents within a class from the other party.

* Objection that can be raised: documents are privileged

* Rationale: Discovery intended to promote fair trial: Percy v General Motors Holden Notes:

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(ii) problems caused by discovery process ALRC Seven Network VLRC

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.

Law:

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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 anticompetitive 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

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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:

* Mega-litigation generates many months of court time, vast quantities of documentation, imposes large burden on parties and court system and community. VLRC report Issues: Abuse: Three categories of discovery abuse:

1. Making unnecessarily broad discovery requests

2. Withholding information to which requesting party is entitled

3. Providing many irrelevant documents to overwhelm other side (or inappropriately conceal documents) Rationale of discovery: avoid trial by ambush. Document destruction:

* Examples of document destruction: McCabe case. Trial judge exercised discretion to strike out defence of British American Tobacco because P's prospects of fair trial damaged by destruction fo documents. Overturned by VCA.
]

(iii) Discovery Process [11.7] - UCPR r 21.1-8 Technology and Discovery - Practice Note SC Gen 7 SC on Use of technology CASE STUDY - Priest Process Order: for

1. Party A files and serves notice of motion (with supporting discovery affidavits) seeking discovery pursuant to UCPR r 21.2

2. Notice of motion heard and court may order discovery of a 'class of documents': UCPR r 21.2

3. 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

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4. Supporting docs: List is accompanied by supporting affidavit

5. 6.

7. 8.

by Party B (UCPR r 21.4(2)) and a solicitor's certificiate (UCPR r 21.4(3)) affidavit by Party B verifies te list. Solicitor's certificate certies that advice has been given about Party B's oligations arising from an order for discovery: UCPR r 21.4 Inspection: Documents are then made 'readily accessible and capable of convenient inspection' by party A: UCPR r

21.5 Continuing obligation: continuing obligation On party B to make available subsequently discovered documents: UCPR r 21.6 Confidentiality: except with court's leave no information from a document obtained as a result of discovery is to be disclosed or used in other legal proceedings. The exception to this rule is if the document has been received into evidence in open court: UCPR r 21.7 Exception: Discovery in personal injury cases is not ordered by the court unless the court 'for special reasons' orders otherwise: UCPR r 21.8

1 Party A files and serves notice of motion (with supporting affidavits) seeking discovery pursuant to UCPR r

21.2 1. Party A files and serves notice of motion (with supporting

2 notice of motion heard

2 affidavits) seeking discovery pursuant to UCPR r 21.2

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

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(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

4 supporting docs -

3 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. *

CPA definitions - possession, otherwise than of land, includes custody and power: s 3 CPA o Possession = legal right to possession of a document (eg client's files) o Custody = physical holding with/out a right to its possession (eg the documents held by your client as an employee) o Power = presently enforceable right to inspect a document without the need to obtain the consent of another (eg documents created by your client's accountant for your client eg an Annual Report)

4 Supporting docs: List is accompanied by supporting affidavit by Party B (UCPR r 21.4(2)) and a solicitor's certificate (UCPR r 21.4(3)) affidavit by Party B verifies the list. Solicitor's certificate certifies that advice has been given about Party B's obligations arising from an order for discovery: UCPR r 21.4 R 21.4 (1) The list of documents must be accompanied by: (a) a supporting affidavit, and (b) if party B has a solicitor, by a solicitor's certificate of advice. See rule 35.3 as to who may make such an affidavit. (2) The affidavit referred to in subrule (1) (a) must state that the deponent: (a) has made reasonable inquiries as to the documents referred to in the order, and (b) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and (c) believes that the documents in Part 1 of the list of documents are within the possession of party B, and (d) believes that the documents in Part 2 of the list of documents are within the possession of the persons (if

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5 inspection

6 continuing obligation

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any) respectively specified in that Part, and (e) as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in, and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege. Inspection: Documents are then made 'readily accessible and capable of convenient inspection' by party A: UCPR r

21.5 Eg in Priest - Did D comply with discovery obligations? No because it did not satisfy overarching purpose. Category 27 - "copies of arrests and charged as contained on the COPS system pertaining to the plaintiff while performing policing duties' D just gave 27 folders to the judge. 'real and significant issues remaining with respect to the discoverability of these documents.' 6 Continuing obligation: continuing obligation On party B to make available subsequently discovered documents: UCPR r 21.6

7 confidentiali ty

7 Confidentiality: except with court's leave no information from a document obtained as a result of discovery is to be disclosed or used in other legal proceedings. The exception to this rule is if the document has been received into evidence in open court: UCPR r 21.7

8 exception

8 Exception: Discovery in personal injury cases is not ordered by the court unless the court 'for special reasons' orders otherwise: UCPR r 21.8

'special reasons' case: Priest v NSW

* Facts: P was a police officer at Cabramatta Police Station. P sued for negligence and breach of contract, claimed suffered psych injury from alleged victimization as whistle blower. Huge list of claimed breaches of duty

* What were the special reasons that required discovery: o P's arguments: (1) why needed info: (a) difficulty in obtaining direct witness evidence to prove case: Priest. And (b) Claimed documents such as internal policies and protocols uniquely in possession of defendant (this satisfied 'special reasons' test)

Technology and Discovery - CASE STUDY - Priest

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In SC if physical documents for discovery exceed 500 court may require parties to consider providing discovery and inspection in the form of an electronic database. Where discoverable documents include electronically stores

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information, parties must try to agree on scope of discovery required, the format of their respective discovery databases and lists and style of document identification. Matters relevant to format of discovery databases and exchange of electronic data is outlined in NSWSC Practice Note 7 Use of technology.

Practice Note SC Gen 7 SC on Use of technology

10.Where parties have discoverable ESI, efficiency dictates that any discovery and production of such information be given electronically to avoid the need to convert it to a paper format. In such cases the Court, as a general rule, will require the parties to:

* create electronic lists of their discoverable ESI material

* give inspection by production of databases containing copies of discoverable ESI created in accordance with an agreed protocol. Host and attachment documents must not be separated in this process and

* change original file names to document identification numbers.

11. Where the parties have more than 500 documents that are not ESI, as a general rule the Court will expect the parties to consider the use of technology to discover and inspect such documents along with any ESI. Decisions about the appropriate use of technology will be better informed if the parties have identified early in the proceedings the scope of discovery and the categories of documents likely to be discovered.

12. Practitioners must advise their opponents at an early stage of the proceedings of potentially discoverable electronically stored information and meet to agree upon matters including:

* the format of the electronic database for the electronic discovery, noting that metadata, mark-up or other "hidden" data will be automatically discovered if native format is used. Because of potential costs, the Court would ordinarily expect it should only be discovered where the relevance outweighs the cost

* the protocol to be used for the electronic discovery including electronically stored information

* the type and extent of the electronically stored information that is to be discovered

* how legacy or deleted data is to be dealt with. The existence of ESI that is not reasonably or readily accessible should be disclosed between the parties, but the Court would ordinarily expect that it would not need to be retrieved unless necessary for the conduct of the proceedings

* whether electronically stored information is to be discovered on an agreed without prejudice basis

* without the need to go through the information in detail to categorise it into privileged and non-privileged information and

* without prejudice to an entitlement to subsequently claim privilege over any information that has been discovered

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