Civ Pro - General Discovery
Terms in this set (32)
What rule is the initial disclosure rule?
What needs to be served along with and SoC or SoD in order to comply with the 'initial disclosure' obligation?
A bundle consisting of (a) all documents referred to in the pleading, (b) any additional principal documents in the party's control that the party has used when preparing the pleading and intends to rely on at trial/hearing.
When is a party excluding from providing the necessary initial disclosure documents?
(2)When circumstances make it impracticable or impossible to comply, in which case a certificate to this effect with reasons must be served with the pleading.
(5) privileged or confidential documents need not be disclosed
(6) documents over which there is a public interest immunity, or reasonable apprehension of this immunity need not be provided.
Case relating to how to go about initial disclosure?
Pankhurst v Cullinane- 8.4 calls for a practical decision about what will suffice and will encourage the other side to match in kind, remembering that full discovery will follow.
What is the consequence of unjustified non-compliance with rule 8.4?
According to Rule 8.4(4), A judge may make an order under rule 7.48 if they see fit. A number are available but pertinent here would be (a) where the pleading is struck out or (c) where the proceeding is stayed.
What rule is about standard discovery?
What rule provides for tailored discovery?
What rule provides the presumption categories for tailored discovery?
What documents are within the scope of standard discovery requirements?
(a) documents relied upon, (b) documents adversely affecting the party's case, (c) documents adversely affecting the other party's case; and (d) documents supporting the other party's case.
In what cases is there a presumption of tailored discovery?
(a) where costs of standard discovery would be disproportionately high in relation to matters in issue; (c) where there is 1 or more allegation of fraud or dishonesty; (c) where the total of sums in issue exceeds $2,500,000; (d) where the total value of assets in issue exceeds $2,500,000; (f) the parties agree that there should be tailored discovery.
What rule is relevant to whether a reasonable search has been made under a discovery order?
What are relevant factors for whether a reasonable search has been made under a discovery order?
(a) the nature and complexity of the proceeding, (b) the number of documents involved, (c) the ease and costs of retrieving a document , (d) the significance of any document likely to be found, and (e) the need for discovery to be proportionate to the subject matter in the proceeding.
What rule provides for the 5 categories of documents in the schedule to affidavit for documents?
What are the 5 categories of documents to be scheduled in the affidavit of documents?
(a)Those in the control of the party giving discovery for which the party does not claim privilege or confidentiality, (b) those in control of the party giving discovery for which privilege is claimed, stating the nature of the privilege claimed, (c) those in the control of the party giving discovery for which confidentiality is claimed, stating the nature and extent of confidentiality, (d) those that have been, but are no longer, in the control of the party giving discovery stating when the documents ceased to be in that control, and the person who now has control of them, (e) those documents that have 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.
Under what rule can you make an order for particular discovery subsequent to a proceeding starting?
Under what rule can you make an order for particular discovery before a proceeding?
8.20 (applies to both parties and non-parties)
Under what rule can you make an order for particular discovery against a non-party after a proceeding has started?
What are a lawyer ethical obligations with regard to discovery?
1. 8.13 - to ensure client understands discovery obligations and fulfils those obligations;
2. 8.18 + Vernon v Bosley- continuing obligations of discovery;
3. LCA (L:C&CCRs) 13.9- must cease to act if client breaches discovery obligations and refuses to remedy. 13.1 overall duty of fidelity to the court, Myers v Elman.
What rule provides for the preservation of documents?
What case refers to when the obligation to preserve documents ends?
Hoyle v Hoyle
Against whom do we assess the "reasonable contemplated" in preservation of documents (8.3)?
Per Gendall J, reasonable person in the shoes of the party in question with the same information.
What rule relates to the use of documents?
What is the exception to rule 8.30?
Documents which are read out in open court (codification of Wilson White ratio).
What are the relevant privileges and sections?
1. s54 - solicitor/client privilege
2. s56 - litigation privilege
3. s70 - public privilege
What are the relevant sections for confidentiality?
1. s69 - overriding discretion as to confidential information
2. s68 - protection of journalists sources.
When will confidentiality make something not discoverable?
Per Lord Diplock in D v NSPCC where the balance of public interest in the confidence outweighted public interes in administrative of justice.
What rule provides for interrogatories to be made?
When must interrogatories be answered?
When they are relevant and neither oppressive nor unnecessary.
What section provides for a notice to admit facts?
What is the consequence for not admitting facts specified in a notice to admit facts?
Paying the costs of proving the facts (i.e. experts or witnesses).
What rule relates to the preparation of the common bundle?
What duty is encompassed in the making of the common bundle?
Duty to cooperate.