1. What is a discovery (disclosure) of documents?

Discovery is the formal procedural process by which parties obtain full information regarding the existence and contents of all relevant documents relating to the matters in question in the proceedings.

In actions begun by writ, the process of discovery generally operates in three stages:

Automatic disclosure: The simultaneous exchange of written Lists of Documents between parties.
Verification (optional): In some circumstances, a party may require the other to file an affidavit/affirmation verifying that the list is complete. For more information, please refer to “Notice to verify”.
Inspection: The physical examination of the actual documents (or the provision of copies) disclosed in the list, excluding those protected by privilege.

When must a list of documents be exchanged?

Within 14 days after the close of pleadings, each party to the proceedings must disclose to the other, by way of a list, the documents in that party’s possession, custody or control that are relevant to the case. 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.)

If parties fail to exchange lists automatically, the court may order “general discovery” at the Case Management Summons stage. For more information, please refer to “How will the Court give directions for the management of a case before the commencement of a trial?”.

What must be disclosed?

Each party must disclose all documents that are relevant to the issues in the case and that are, or have been, in that party’s possession, custody or power. This duty applies even if a document is unhelpful, damaging or contrary to that party’s own case.

A document is generally relevant if it may directly or indirectly:

support or undermine any party’s case; or
lead to further information or evidence that may be relevant.

The duty of discovery is also a continuing one. If a party later finds or obtains further relevant documents, that party may be required to disclose them.

Possession, custody and power

For discovery purposes, a party must disclose all relevant documents that are or have been in his possession, custody, or power. A document must be included if it falls within any of the following 3 categories:

Possession: This refers to the physical holding of a document pursuant to a right to possess it (for example, as an owner or an agent).
Custody: This is the mere actual physical holding of a document, regardless of whether the party has a legal right to it (for example, an employee holding a document for an employer).
Power: This is a broad category. It means the party has a presently enforceable legal right to obtain the document or inspect it from whoever is currently holding it, without needing to get anyone else’s consent.

The obligation extends to documents that “have been” in the party’s possession, custody or power but are no longer available (e.g., those that were lost, destroyed, or given away). The list must specify when the party last held them, what has become of them, and who currently holds them.

What counts as a document?

For the purpose of discovery, “documents” is interpreted broadly. It includes not only paper documents but also any material on which information is recorded. They include paper documents, photographs, audio or video tapes, or electronic data contained in any tapes, discs or other electronic means.

Parties should take care to preserve relevant documents once litigation is contemplated or commenced.

The form and content of list of documents

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 Form No. 26. 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.

The list of documents must be set out in 2 schedules:

Schedule 1

Documents currently in the party's possession, custody, or power.

Part 1: Documents the party is willing to produce for inspection.

Part 2: Documents the party objects to producing for inspection. The party must provide a sufficient statement of the grounds for his objection (e.g. legal advice privilege).

Schedule 2

Documents that were once but are no longer in the party’s possession, custody, or power. The party must state when they were last held, what has become of them (e.g. lost, destroyed, or given to a third party) and in whose possession they now are.

Two important points to note are as follows:

Even if a party considers that certain documents are privileged (i.e. documents that the party can refuse to disclose to the other party under the law), the party still has a legal obligation to include them in the list of documents under the category of privileged documents. However, the party may refuse to allow 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. For more information, please refer to “Is a party required to disclose and produce all documents relevant to the litigation?”
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). For more information, please refer to “I have reasonable grounds to believe that the other party fails to disclose all relevant documents during the discovery stage. What can I do?”

Inspection and provision of copies

Both sides must also allow the other side to inspect the actual documents. Serving a list creates a mandatory obligation to allow inspection.

The party serving the list must also serve a notice stating a time (within 7 days) and place for inspection.

In modern practice, parties often forgo physical inspection and instead request copies of the documents. A party entitled to inspect can serve a notice requiring the other side to supply a true copy of any document.

The party requesting the copies must undertake to pay reasonable charges. Copies and an account of charges must be supplied within 7 days of the request.