Introduction to Discovery

The information contained below is in summary form only and is intended as a general introductory guide. This information must not be relied upon and is not a substitute for obtaining your own independent legal advice that is specific to your factual scenario. If you would like LegalStreet’s advice then please do not hesitate to contact us directly.

Discovery

  1. When commencing a civil case in the District or High Court all parties must discover and disclose every relevant document, whether helpful or harmful, before the hearing is held. Discovery obligations continue right up until the time of judgement, so it is important for parties and potential litigants to be aware of the following.
  2. Part 8 of the High Court Rules, and Part 8 of the District Court Rules set out the Rules relating to discovery, inspection and interrogatories for each Court respectively.

Preservation of Documents

  1. It is important to be aware that as soon as a proceeding is reasonably contemplated you as a party or prospective party must take all reasonable steps to preserve any documents that will be discoverable during a proceeding.
  2. This has follow on ramifications for your lawyer, as they are under an obligation to ensure that their clients comply with all discovery obligations, and are to cease acting for a client if they are aware of a breach (for example the destruction of discoverable documents).
  3. Lawyers are also under an obligation to ensure that all relevant documents are discovered by the other side, and that all documents (excluding those protected by privilege) are made available for inspection.

Initial Discovery in the District Court:

  1. After a pleading has been filed, a party must serve on all the other parties at the same time as serving the pleading, a list of documents upon which they rely. This list must comply with Form 6 of the District Court Rules, and must state all the documents referred to in the pleading, and any additional principal documents in the filing party’s control, that have been used in preparing the pleading, and which are intended to be relied upon when the matter comes to trial.

Initial Discovery in the High Court:

  1. After a pleading has been filed, a party must serve on all the other parties at the same time as serving the pleading, a bundle consisting of all the documents referred to in the pleading and any additional principal documents in the filing parties control, that have been used in preparing the pleading, and which are intended to be relied upon when the matter comes to trial.
  2. This Initial discovery phase in both courts does not require the disclosure of adverse documents or any document which the party claims is confidential or privileged.

Discovery Orders:

  1. Both the District Court and High Court rules allow for orders for either standard discovery or tailored discovery. In the District Court this order will be made at the second Case Management Conference (CMC) and in the High Court an order will be made at the first CMC.

Standard Discovery:

  1. Standard discovery requires each party to disclose the documents that are or have been in that party's control and that are—
    1. documents on which the party relies; or
    2. documents that adversely affect that party's own case; or
    3. documents that adversely affect another party's case; or
    4. documents that support another party's case.

Tailored Discovery:

  1. Tailored discovery must be ordered when the interests of justice require more or less discovery than standard discovery would involve.
  2. In both the District and High Courts parties need to try and agree on the suitable discovery order 10 working days before the CMC at which the discovery orders will be made. This is to be facilitated by using the Discovery Checklist which is set out in Part 1 of Schedule 9 of the HCR.

Affidavit of Documents:

  1. Once a discovery order has been made each party must file and serve an affidavit of documents. The affidavit must list each document that:
    1. is in the control of the party giving discovery and for which the party does not claim privilege or confidentiality:
    2. is in the control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed:
    3. is in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of the confidentiality:
    4. has been, but is no longer, in the control of the party giving discovery, stating when the document ceased to be in that control, and what has become of it:
    5. has not been in the control of the party giving discovery but which that party knows would be discoverable if that party had control of them.
  2. It is important to comply with the requirements of the affidavit of documents. If a party fails to disclose a document but then seeks to rely on that document as evidence, they will only be able to do so with the consent of the opposing party.
  3. If you believe that the opposition has not disclosed all relevant documents, then an application to the Court for Particular Discovery against that party may be made. Further, if you challenge a claim of privilege or confidentiality made in an affidavit of documents, it is possible to apply to the court for an order setting aside this claim to privilege or confidentiality. Legal Street can assist you in this interlocutory application.

Inspection of Documents:

  1. Following the filing and serving an affidavit of documents you must make all documents listed in the affidavit which are in your control available for inspection by way of exchange. Documents are considered to be “in your control” if e.g. they are with your accountant, lawyer, or with a Government Agency that requires your consent to release. Documents are to be exchanged in accordance with Part 2 of Schedule 9 of the HCR. Parties may agree to vary the listing and exchange protocol from that set out in schedule 2 and must advise the judge that a variation has been agreed to at the applicable Case Management Conference.
  2. Privileged documents are not required to be produced for discovery. However, if a document contains privileged and non-privileged information it must be made available for inspection, but the parts of the document which are privileged may be redacted (blacked out).
  3. Failure to comply with a discovery order can result in a person being guilty of contempt of court.

Continuing obligations

  1. Each party ordered to provide discovery has a continuing obligation to give discovery and offer inspection at all stages of the proceedings, even if that party has filed and served an affidavit of documents in compliance with Part 8 of the DCR

Conclusion

  1. If you have any further queries about the Discovery process and what is required of you, LegalStreet would be happy to assist. Do not hesitate to contact our office with any queries you may have.

LegalStreet Telephone +64 9 300 5494, Facsimile +64 9 300 5489,

Mobile +64 210 595 649, E-mail: lawyer@legalstreet.co.nz, Skype Legal_Street,

Level 3, 175 Queen Street, Auckland 1010, P.O. Box 1325 Shortland Street, Auckland 1140