What is discovery?

Discovery is a stage during the lifecycle of a legal case, where one party may ask for documents from the other party in the case.

The documents asked for must be both relevant and necessary so that the case can proceed on a fair basis. Colleagues working in a State authority may be asked to help with the discovery.

When does the discovery process happen?

In civil cases, discovery happens after the defence has been delivered.

Discovery starts with a request for voluntary discovery. This is a letter which details the categories of documents requested and gives the reasons why the documents are relevant and necessary to the case. At this point, the solicitor for the State authority can agree the categories of discovery documents.

If no agreement can be reached, an application called a Notice of Motion for Discovery is brought to court. In that case a judge decides what categories of discovery are relevant and necessary, and a Court Order is made.

Whether a party has agreed to make discovery or whether there is a Court Order, the obligations on the parties in relation to discovery are the same.

Discovery must always be made within a set time frame which is either agreed or directed by the court –this is usually between 4-12 weeks.

Why is discovery made?

The discovery stage allows each party to assess the strengths and weaknesses of their cases before the court hearing.

After discovery is made, each party knows the case that will be made to the judge and what documents and witnesses to expect at the hearing.

Failure to make proper discovery within the time limit can have serious consequences. For example, a State authority might not be allowed to defend the case.

What should State authorities do when they receive notification of a discovery request from the State Claims Agency’s assigned Solicitor?

• Review it straight away – time limits are often quite tight
• Think about where and how the documents are stored by your organisation
• Contact your solicitor or claims manager to discuss the request and tell them how you will provide the documents
• Consider who might have documents - there may be files held by different people for different reasons at different places in your organisation e.g. HR and Payroll
• Gather all documents from the different people and places
• Send the documents to your solicitor or claims manager who will carefully review all the documents and then prepare the Affidavit of Discovery, listing the documents which are to be shared with the other party

Once the draft Affidavit of Discovery is returned to you for review, read through it very carefully, compare the categories to the list and make sure the discovery is complete and includes all the documents that it should.

The person who swears the Affidavit of Discovery is called the deponent. You should discuss with your claims manager who is best placed to swear the affidavit; this varies from case to case. Once it is sworn, the Affidavit of Discovery and documents are shared with the other party.

Do's and don’ts for discovery

Do

• Prioritise discovery – the time frames are very tight
• Locate the documents and gather them together
• Speak to your colleagues who may have documents as soon as the request for discovery arrives and emphasise how time sensitive and important it is
• Carry out a comprehensive and detailed search for the documents and make sure that you record the details of your search, the dates, people, and the places
• Gather the original documents and keep them safe for the court hearing – make copies of the discovery documents and send them to your claims manager or solicitor
• Include all documents even if you are unsure about whether a document is discoverable, the solicitor will review and decide the legal position
• Identify any documents or files which may have been lost or misplaced and inform the claims manager or solicitor

Don’t

• Don’t redact any data from documents, the State Claims Agency has a legal basis to receive unredacted documents containing personal data from all delegated State authorities.
• Don’t decide whether a document is discoverable or not, if it could be, always include it and the solicitor will review and decide the legal position.

The discovery process is complex; if you have any queries, please contact your claims manager or solicitor, we will work together with you on discovery as a team to ensure we are fulfilling the legal obligations required by the process.

If you have any questions on the discovery process, please get in touch with us.