1. What is a discovery (disclosure) of documents?
After the close of pleadings, within 14 days, each party to a civil action must disclose to the other the documents it possesses that relate to the case in the form of a list. This list is called a list of documents. (Note: When both parties have set out all their facts in the statement of claim, defence (or defence and counterclaim) and reply to defence (or defence to counterclaim), the pleadings are considered to have been closed.)
It should be borne in mind that the parties have to disclose all documents relevant to the case that are in their possession or within their custody or control, even if some of them are harmful to their own case. Each party can also inspect the documents on the other party's list.
For the purpose of the list of documents, documents include paper documents, photographs, audio or video tapes, or electronic data contained in any tapes, discs or other electronic means.
The documents to be included in the list of documents should be set out in a chronological order and the list of documents should be prepared in accordance with a specified form, which is obtainable from the Registries of the High Court and the District Court and the Resource Centre for Unrepresented Litigants. Please visit the website of the Resource Centre for Unrepresented Litigants to obtain more guidelines for preparing a list of documents and a sample list of documents. Two important points to note are as follows:
- If a party thinks that he has documents which are privileged (i.e. documents that the party can refuse to disclose to the other party under the law), he should put them under the category of privileged documents in the list. He may refuse to disclose them or let the other party inspect them. If there is a dispute about whether or not the documents are privileged, the court will make a final decision.
- If a party considers that the other party has certain documents relevant to the case but has not yet disclosed them, he can apply to the court for an order compelling the other party to disclose those documents. If the court makes that order and the other party does not comply with it, an application can be made to the court for an order to enter judgment against the party that has not complied with the disclosure order (in which case the defaulting party will lose the whole case).
Both sides must also allow the other side to inspect the actual documents.