Discovery is provided for at Part 8 of the High Court Rules. It is a process of identifying relevant documents to the other parties involved in a case. Many more documents than those disclosed by way of initial disclosure exchanged with statements of claim and defence might be identified in the discovery process.
Part 8 of the High Court Rules includes a great many rules relating to discovery that are not addressed in any detail or at all here. Fundamentally, there are two types of discovery that could take place. Rule 8.7 of the High Court Rules provides for standard discovery:
Standard discovery requires each party to disclose the documents that are or have been in that party’s control and that are –
(a) documents on which the party relies; and
(b) documents that adversely affect that party’s own case; and
(c) documents that adversely affect another party’s case; and
(d) documents that support another party’s case.
Standard discovery can be a long and expensive process if, for example, all records of an organisation relating to a large project involving many staff over several years need to be accounted for. Tailored discovery offers an alternative. Rule 8.8 of the High Court Rules provides:
Tailored discovery must be ordered when the interests of justice require an order involving more or less discovery than standard discovery would involve.
Tailored discovery is presumed in circumstances set out at rule 8.9 of the High Court Rules. Those circumstances include agreement between the parties to adopt tailored discovery rather than standard discovery. Agreeing to tailored discovery could save all parties substantial time and cost if the agreed scope of discovery is restricted to what really matters.
Affidavit of documents
The parties are required to list documents identified in the course of their discovery process in an affidavit of documents in accordance with rule 8.15 of the High Court Rules:
(1) Each party must file and serve an affidavit of documents that complies with this rule, subject to any modifications or directions contained in a discovery order.
(2) In the affidavit of documents, the party must –
(a) refer to the discovery order under which the affidavit is made; and
(b) state that the party understands the party’s obligations under the order; and
(c) give particulars of the steps taken to fulfil those obligations; and
(d) state the categories or classes of documents that have not been searched, and the reason or reasons for not searching them; and
(e) list or otherwise identify the documents required to be discovered under the order in a schedule that complies with rule 8.16 and Part 2 of Schedule 9; and
(f) state any restrictions proposed to protect the claimed confidentiality of any document.
(3) The affidavit may be in form G 37.
(4) Each party must file and serve the affidavit of documents within such time as the court directs or, if no direction is made, within 20 working days after the date on which the discovery order is made.
The affidavit of documents may make special provision for privileged and confidential information. Such information is referred to in the affidavit but may not necessarily have to be made available for other parties to inspect. See subpart 8 of part 2 of the Evidence Act 2006 and rule 8.28 of the High Court Rules for provisions relating to privilege and confidentiality.
Documents identified in the affidavit must be recorded in the way described at part 2 of schedule 9 of the High Court Rules. That is a fairly detailed and technical schedule. Broadly, however, what you would need to do is this:
1. Identify the documents you are supposed to discover.
Refer to the rules for standard discovery above if you are required to give standard discovery, or otherwise refer to what you agreed to discover by way of tailored discovery.
There may be documents that are not in your control and either are discoverable or would be if you were in control of them. Those may need to be referred to in your affidavit of documents in a specific part for documents under the control of someone else.
2. Assign each document a reference number.
The next step is to assign each document a ‘document ID’ or reference number.
Standard document IDs are in fact an alphanumeric combination of letters and numbers. Say the plaintiff is Mr Smith and the defendant is Mr Jones. It would do no good if both numbered their documents sequentially because then there would end up being two different documents in the same case referred to as ‘document 1’ (one from Smith, another from Jones). The solution would be for all documents identified by Smith to be prefaced by ‘SMI’ and all from Jones to be prefaced with ‘JON’. So the referencing might look like ‘SMI.0001’, ‘SMI.0002’ and ‘SMI.0003’ for the first three documents identified by Mr Smith, whereas documents of Mr Jones could look like ‘JON.0001’, ‘JON.0002’ and JON.0003’.
When assigning reference numbers to each document, you should actually append a label with that reference number to the document. There are a number of ways this could be done. You might simply write the reference number on the bottom right hand corner of each paper document, although you should be careful not to disturb the quality of the evidence of that document. That is, you should be careful not to cover any writing on the document or, by writing on the document, create any question about whether the document is genuine.
An alternative to writing on an original paper document is to copy the document and then write the reference number on the copy. That way you preserve the original as is.
Another alternative is have all your paper documents scanned and stored electronically as PDF images, and then reference those electronic copies. That can end up being a real timesaver if you have a large volume of paper documents and you are able to automate the referencing exercise, search all documents at once for specific phrases and order your documents into particular categories. Electronic solutions could help you identify and organise the evidence you need much faster and thereby justify their cost.
You would end up scanning all documents as PDF images anyway if you are required to give standard discovery (see inspection of documents below), and may have to do so for tailored discovery depending on what was agreed. If you are or may be required to discover documents in some kind of electronic format then it would pay to plan for that at an early stage and account for it in your decision making. Identifying what you will need to do and how you might do it at an early stage could save time and cost as you go through the discovery process.
3. Identify which documents may be subject to privilege or confidentiality
See subpart 8 of part 2 of the Evidence Act 2006 and rule 8.28 of the High Court Rules for provisions relating to privilege and confidentiality.
There are various reasons why a document might be confidential and various kinds of privilege. You should group those reasons or types into categories. For example, documents that are subject to legal professional privilege in accordance with section 54 of the Evidence Act 2006, documents that are subject to litigation privilege in accordance with section 56 of the Evidence Act 2006 and so on. Then you assign each category a reference. For instance:
P1 Communications with legal advisers
P2 Preparatory materials for proceedings
P3 Settlement negotiations or mediation
P4 Communications with ministers of religion
C1 Commercially sensitive information
C2 Communications with journalists
Then you note the relevant category of privilege or confidentiality on the label appended to each privileged or confidential document. So, in the example of documents discovered by Mr Smith, some of the labels for his documents might become ‘SMI.0001.P3’ or ‘SMI.0002.P1’ or ‘SMI.0003.C1’. This way you can immediately see if a document is subject to privilege or confidentiality, and the relevant category, just by reading the label.
4. Create a schedule for the documents
Each discoverable document should be listed in a schedule. Particular documents need to be recorded in particular parts of the schedule as provided for by form 22 of the District Courts Rules 2014. That is, of course, only insofar as that form is not amended by way of tailored discovery. The parts of the schedule as set out in form 22:
In Part 1 of the Schedule, I list the documents that are in my control and for which I claim neither privilege nor confidentiality.
In Part 2 of the Schedule, I list the documents that are in my control and for which I claim privilege and state in relation to each document the nature of the privilege that applies.
In Part 3 of the Schedule, I list the documents that are in my control and for which I claim confidentiality. I propose that inspection of these documents be restricted to [name persons] and that the following restrictions apply: [specify proposed restrictions on inspection].
In Part 4 of the Schedule, I list documents that are no longer in my control and state when, to the best of my knowledge and belief, each document ceased to be in my control and the persons who, to the best of my knowledge and belief, now have control of each document.
In Part 5 of the Schedule, I list other documents known to me that have never been in my control but that I know would be discoverable if I had control of them.
The format of the schedule itself is explained in Part 2 of Schedule 9 of the High Court Rules as follows:
|Field no.||Field name||Description|
|1||Document ID||The document ID must be a unique reference. The format must be alphanumeric, for example AAA.000001, AAA.01.001, etc. Parties must agree on Party Codes, for example, –
AAA – Party A
BBB – Party B
CCC – Party C
|2||Date||The date appearing on the face of the document. Dates must appear as DD/MMM/YYYY, for example, 01 Jan 2010. If a document is partially dates or only partially legible, this field must contain such date information as can be determined from the document. If the date is estimated, state that in an additional field titled “Estimated”.|
|3||Document type||The type of document being listed, for example, email, letter. Parties may agree to construct a predefined list for all document types.|
|4||Author||The name of the author of the document. If only part of either the individual or organisation can be determined, provide the information available.|
|5||Recipient||The name of the recipient(s) of a document. If only part of either the individual or organisation can be determined, provide the information available.|
|6||Parent document ID||This field will be populated with the document ID of the parent document. This field will be populated only if a document is attached to, or embedded within, another document.|
|7||Privilege category||This field is to be populated if the document is subject to a privilege claim|
Using defined abbreviations can simplify the schedule and make it easier to read, so that it may end up looking something like this:
ID Document ID
Date Date of document
Estimated Document date is estimated
Type Type of document
Author Author of document
Recipient Recipient of document
Parent Parent document ID
Privilege Privilege or confidentiality is claimed
Author / Recipient
AND Andrews Technical Writing Limited
DAV Davidson Law Office
JON Mr Jones
LEE Lee Publications Limited
SMI Mr Smith
Privilege / Confidentiality
C1 Confidential for commercial sensitivity
P1 Legal professional privilege
P2 Litigation privilege
|SMI.0001||10 Jan 2010||E||SMI||LEE||P2|
|SMI.0002||12 Jan 2010||F||SMI||DAV||P1|
|SMI.0003||7 Feb 2010||Yes||L||SMI||AND||C1|
|SMI.0004||9 Feb 2010||E||SMI||LEE||SMI.0001||P2|
|SMI.0005||13 Feb 2010||F||SMI||JON|
|SMI.0006||15 Feb 2010||E||JON||SMI|
|SMI.0007||15 Feb 2010||E||SMI||JON||SMI.0006|
Affidavit of documents template
You can download a template affidavit of documents here.
Filing and serving an affidavit of documents
Affidavits of documents are to be filed in the High Court dealing with the court case and served on all other parties. There is no filing fee for an affidavit of documents. See those parts dealing with service for how you might go about serving an affidavit of documents on other parties to the court case.
Template letter enclosing affidavit of documents
You can download a template letter enclosing affidavit of documents here.
Inspection of documents
Inspection is the next step after affidavits of documents are filed and served. Documents ‘discovered’ in an affidavit of documents are made available for ‘inspection’ by other parties to the court case. Rule 8.27 of the High Court Rules provides:
(1) As soon as a party who is required to make discovery has filed and served an affidavit of documents, that party must, subject to rule 8.28, make the documents that are listed in the affidavit and that are in that party’s control available for inspection by way of exchange.
(2) Documents must be exchanged in accordance with the listing and exchange protocol in Part 2 of Schedule 9.
(3) If a discovery order exempts a party from giving discovery and inspection electronically, that party must make the documents listed in the affidavit of documents available for inspection in hard copy form, and must promptly make those documents available for copying if requested.
(4) A party who has received a document electronically under this rule may, on giving reasonable notice in writing, require the person giving discovery to produce the original document for inspection.
(5) This rule also applies to documents listed in an affidavit filed and served under rule 8.20 or 8.21.
(6) This rule is subject to the terms of any discovery order made under rule 8.5.
The listing and exchange protocol set out at part 2 of schedule 9 of the High Court Rules provides:
6 Protocol requirements
(1) Parties are required to –
(a) list documents, providing the following detail for each document:
(i) document ID:
(iii) document type:
(vi) parent document ID:
(vii) privilege category; and
(b) exchange documents electronically by way of –
(i) a single, continuous table or spreadsheet, with each column exclusively containing the detail from paragraph (a); and
(ii) multi-page images in PDF format (or another format if agreed)
11 Exchange format
(1) The format of the table or spreadsheet must be as follows:
(a) each document must be contained within a separate row and all field entries must be contained within single cells; and
(b) a delimiter, for example, “;” must be used for any multi-entry fields, for example, “; recipient”.
(2) Documents must be provided as multi-page PDF images (or in another format if agreed).
(3) The file name for each individual document must be “document ID.pdf”.
(4) If a document has relevant metadata, parties may request its provision in native file format. Either –
(a) the document ID must be contained within the name of the native file format, for example, “document ID.xls”; or
(b) the file name of the native file must be specified in an additional field in the spreadsheet.
(5) The parties may agree to provide documents as searchable images.
(6) If the software technology available to the party giving discovery makes it reasonably possible, all image documents must have the document ID clearly marked on at least the first page of the document.
(7) The spreadsheet and the folder with the documents should be provided on a media disk.
(8) Parties should not place any restrictions on the spreadsheet or documents that prevent opposing parties from accessing them.
To summarise some of the main points:
1. Scan each document to be made available for inspection as a separate PDF document if you have not already done so.
2. Save each PDF document by its document ID reference with “.pdf” at the end. Using the Mr Smith example, his first three documents to be made available for inspection would be saved as “SMI.0005.pdf”, “SMI.0006.pdf” and “SMI.0007.pdf”.
Note that, in the example of Mr Smith, privilege and confidentiality was claimed for the first four documents discovered in his list of documents. Here he is making only those documents not subject to privilege or confidentiality available for inspection. Consequently, the first of the discovered documents to be made available is SMI.0005.
3. Either edit the schedule of discoverable documents for your affidavit of documents or create a whole new table or spreadsheet as follows:
3.1. Reference only those documents to be made available for inspection.
3.2. Reference documents included within the table or spreadsheet as you would have in the schedule to your affidavit of documents if you were providing standard discovery and if there is no agreement or order otherwise.
4. Save your table or spreadsheet of documents, and the PDF documents themselves, to a CD, DVD or Blu-ray disk (or disks).
5. Provide your disk(s) of documents to the other parties in the court case.
Template letter enclosing disk of documents
You can download a template letter enclosing disk of documents here.
Note that the disk(s) may only have to go to the other parties in the court case and not the High Court itself.