New Discovery Obligations for Litigants

New Discovery Obligations for Litigants
Monday February 13, 2012

With the New Year has come new obligations on parties when providing discovery (the listing and exchange of documents) in High Court proceedings. Where it is often that a change in the rules may only affect lawyers, the changes recently made in relation to discovery have a significant impact on the litigants themselves. When initially filing proceedings in the High Court a litigant must now provide to the other side a copy of the documents referred to in the claim, together with all documents that were used by themselves and the solicitor to the prepare the claim. This requires parties to ‘front load’ the preparation of evidence and documentation resulting in a large amount of time and cost to be expended even before proceedings are filed. Further, parties are also required to exchange documents that may be considered to be adverse to their claim, and a conscious attempt must be made by litigants to preserve all documentation held by them once litigation is in contemplation. A higher obligation on litigants is therefore imposed to ensure that documents (physical, electronic, or otherwise), are well kept. Another requirement of the High Court is the full cooperation of the parties when deciding what documents should be discovered and how they should be exchanged. Agreement needs to be reached early on in the proceedings, and again this is an exercise that could prove costly before any substantive issues are even addressed. Litigants need to remember that taking an aggressive stance on a small discovery point may mean that the Court are required to intervene, resulting in further cost and a delay in proceedings. Due to the arbitrary nature of litigation this cannot always be helped, and judicial intervention may be required to resolve differences, even if both parties are being completely reasonable in their discovery requests. The new rules are designed to reduce the overall cost of litigation by allowing each party to have a better view of the strength of their evidence and arguments early on in proceedings. Cooperation and agreement appears to be the key, although ironically, in many cases, if the parties were able to cooperate the issuing of proceedings would not eventuate.

 

By Chris Patterson