Disclosure in Civil Procedure

Overview

This lecture covers the civil procedure topic of disclosure (also called discovery), focusing on parties' obligations to share relevant documents and information before trial, including processes, rules, and types of privilege.

Purpose and Scope of Disclosure

• Disclosure (discovery) allows parties to obtain relevant information and documents from each other before trial.
• Its aim is to ensure both parties know the case against them and to aid fair settlement or trial.
• Disclosure includes making documents available for inspection and responding to interrogatories (formal questions).
• Limiting disclosure helps prevent excessive costs relative to the value of the litigation.
• Disclosure is limited by privilege and other protections to balance access and cost control.

Disclosure Process and Requirements

• First, determine if disclosure is needed and if the client has relevant documents.
• Assess the scope and necessity of disclosure; application under rule 223 if needed.
• Inform clients of their disclosure obligations and access all relevant files.
• Identify relevant, privileged, lost, destroyed, and duplicate documents.
• Prepare a verified list of documents, exchange with the other party, and conduct inspection (physical or electronic).
• Interlocutory disputes about disclosure can arise throughout the process.

Rules and Methods of Disclosure

• Under UCPR Chapter 7, parties must disclose directly relevant documents in their possession or control.
• Disclosure continues throughout the case until all issues are resolved.
• Disclosure occurs via delivery of a document list and copies (rule 214) or by inspection (rule 216).
• Disclosure is generally due within 28 days after pleadings close.
• Privileged documents need not be disclosed but must be listed as such.

Definition and Relevance of Documents

• "Document" is defined broadly to include writing, electronic records, images, sounds, and more.
• Only documents directly relevant to the allegations or issues must be disclosed.
• Documents only relevant to credit, duplicate unchanged copies, and expert reports may be excluded from privilege.

Possession, Control, and Court Orders

• Only documents in a party's possession or control require disclosure.
• Possession means physical holding; control means power to obtain the document.
• Courts may order further or additional disclosure if initial disclosure is insufficient.
• Electronic disclosure is common; Practice Direction 10 of 2011 provides guidance.

Obligations and Consequences

• Solicitors must certify that disclosure duties were explained to their clients (rule 226).
• Failure to disclose can result in inability to use documents at trial, contempt, costs, case dismissal, or other sanctions.
• Non-party disclosure allows parties to obtain relevant documents from third parties (rule 242).

Interrogatories

• Interrogatories are written questions one party asks another to clarify issues and obtain admissions.
• Court leave is generally needed to deliver interrogatories; limited in number (rules 229–232).
• Responses must be made by affidavit and answer each question specifically.
• Objections can be made if questions are irrelevant, unnecessary, oppressive, or privileged.

Privilege and Other Protections

• Privileged documents do not need to be disclosed; claims must be made by affidavit.
• Legal Professional Privilege includes legal advice privilege (client–lawyer advice) and litigation privilege (communication for litigation).
• Privileges also include self-incrimination and public interest.
• "Without prejudice" communications (settlement discussions) are generally protected from disclosure.

Key Terms & Definitions

• Disclosure — The process where parties exchange relevant documents before trial.
• Discovery — Another term for disclosure, used in some jurisdictions.
• Interrogatories — Written questions for the opposing party, to be answered formally.
• Privilege — Legal right to withhold certain documents or information from disclosure.
• Possession — Physical holding of a document.
• Control — Legal right or power to obtain a document.
• Legal Professional Privilege — Protection for confidential client–lawyer communications related to legal advice or litigation.
• Without Prejudice — Communications made during settlement negotiations that cannot be used as evidence.

Action Items / Next Steps

• Review the disclosure decision tree diagram in the study guide.
• Read Practice Direction 10 of 2011 and UCPR rules related to disclosure and interrogatories.
• Prepare for next week’s topic on affidavits.