When Power Goes Wrong · Evidence & Proof Ledger · Part 29

What changes once discovery is available?

Discovery is compulsory litigation disclosure, not an information request. High Court discovery can require a party to disclose documents that help or hurt either side, with tailored discovery available where the interests of justice require it.

Once civil proceedings reach the discovery stage, the evidence relationship changes. A party is no longer simply asking the opponent to volunteer information.

High Court Rules Part 8 governs discovery and inspection. Standard discovery includes documents relied on by the party and documents that adversely affect either party's case or support another party's case. Tailored discovery can narrow or expand categories, date ranges, custodians, keywords and search methodology.

Discovery reaches adverse documents.A party's disclosure duty is not confined to records it wants to use. The rules are designed to disclose relevant documents within the ordered scope even where those documents damage the disclosing party's case.

Standard discoveryDocuments relied on, adverse to own case, adverse to another's case, or supportive of another's case.

Tailored discoveryIssue-based or category-based discovery adjusted for proportionality and justice.

Electronic materialSearch strategies may include key custodians, date ranges, keywords, threading and other electronic techniques.

Non-party routeThe Rules also permit orders for particular disclosure against non-parties in appropriate circumstances.

Discovery should be designed around disputed issues and document systems—not simply “all documents relating to the case”.

Court rulesHigh Court Rules 2016, Part 8 and Schedule 9.

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