Electronic discovery issues: disclosure requirements in Britain, Canada, and Australia.

• Author: Tyler, Mark L.

There is little authority on discovery of electronically stored material, but these countries have rules supporting the duty of broad disclosure

AGAINST the backdrop of fast-developing information technology, the proliferation of electronic communications and the use of increasingly sophisticated computerised document management systems, U.S. case law and commentators have led the way in drawing attention to the implications for confidentiality and the dangers that lie in wait for litigants in the discovery process.(1) Other jurisdictions have been slower to come to terms with the ramifications of procedural rules and the way in which lawyers approach discovery.(2)

The law on discovery of material in electronic media is undeveloped in these jurisdictions, and few firm conclusions can be derived from existing case law. However, it is settled law that the definition of document encompasses media such as photographs, films and computer discs. An English court said as long ago as 1908, "There is a document wherever there is writing or printing capable of being read, no matter what the material may be upon which it is impressed or inscribed."(3) The courts are likely to protect documents or other information from disclosure in circumstances where privilege would be upheld if the records were held in the form of paper.

In Britain, Canada and Australia, the rules relating to discovery and inspection of documents are found in the procedural rules of the courts and the associated body of case law.

In the High Court of England and Wales, procedure is governed by the Rules of the Supreme Court (RSC). The county courts have an overlapping jurisdiction, although in the main, actions with a value of 50,000 [pounds sterling] or more will be in the High Court. The County Court Rules (CCR) are broadly the same as the RSC.(4)

The rules of civil procedure for Ontario provide the source of all Canadian examples to follow. Notwithstanding that the rules vary within the common law provinces (Quebec is governed by the civil law), they remain fairly consistent throughout Canada. The Ontario rules roughly reflect the Canadian position on documentary discovery.

In Australia, each court has its own set of rules, which are largely similar. Separate rules exist for the High Court, Federal Court, and the state supreme courts. In addition, the lower courts in each state (the district court and local court or equivalent) also have their own rules. However, the position in New South Wales in relation to its state Supreme Court Rules is now different because of recent amendments, aspects of which will be discussed. In addition, in Australia, the common law has been modified by virtue of Evidence Acts enacted in 1995 by the Commonwealth of Australia and the New South Wales parliaments.

In these jurisdictions, parties generally are required to disclose all relevant documentary materials, unless they are subject to privilege, in contrast to the U.S. procedure of providing discovery in response to an opponent's requests. This frequently requires lawyers having to advise and make judgments about the relevance of individual documents or classes of documents to the issues pleaded. An English court stated:

... any document must be disclosed which it is reasonable to suppose contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary or which may fairly lead him to a train of inquiry which may have either of these two consequences. Discovery is thus not necessarily limited to documents which would be admissible in evidence.(5) This will include documents adverse to the client's case, as explained by Sir John Donaldson, Master of the Rolls, in Davies v. Ely Lilly & Co., when he observed that:

The right [to discovery] is peculiar to the common law jurisdiction. In plain language, litigation in this country is conducted "cards face up on the table." Some people from other lands regard this as incomprehensible. "Why," they ask, "should I be expected to provide my opponent with a means of defeating me?" The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties, and, if the court does not have all the relevant information, it cannot achieve this object.(6) The test of relevance is broad. A document is relevant to a matter in issue between the parties if it is likely to advance either party's case or lead to a chain of enquiry that would have the same effect.(7)

RULES OF DISCOVERY

As a general rule, discovery of documents takes place by exchange of lists of documents--for example, within 14 days after pleadings are closed, under the rules for England and Wales. This time limit is rarely observed in practice, and usually a longer period will be negotiated or provided for by order of the court.

The process of discovery involves two separate steps: (1) the identification and disclosure in a prescribed list of all documents which are or have been in the possession, custody or power of a party to the action (or agent of that party) and which relate to matters in issue in the action;(8) and (2) the production of those documents which remain in the possession, custody or power of the disclosing party to the opposing party for inspection, subject to privilege from production on certain well-defined but rather narrow grounds.

The duty to disclose the existence of all relevant documents is a strict one, and it is enforced by the courts. If it becomes clear that a party has withheld documentation that should have been disclosed, not only might the party be penalized in costs, but there are the ultimate sanctions available to the court of dismissal of an action or striking out of a defence with a default judgment entered.(9) In Ontario, failure to give discovery of documents (supported by affidavit) may lead to the revocation or suspension of a party's right to initiate or continue an examination for discovery.(10) In some instances, withholding documents may be punishable as contempt of court.

In litigation there is an overriding obligation on lawyers as officers of the court to ensure that their clients fully understand the obligation to give discovery and that they fulfill that obligation. Documents which are or have been in the party's possession, custody or power include those which, though not in the party's possession or custody, the party has a right to obtain from another person.(11)

"Documents" for these purposes can be anything which furnishes information, including writing or printing (e.g., drawings, plans, diagrams, diaries, etc.), photographs microfilm records, tape recordings, film, video and computer records. Any and all copy documents are meant to be disclosed as well as the originals.(12)

In principle, a computer database is susceptible to discovery unless privileges applies.(13) In relation to the discoverability of e-mail messages, a recent case in Australia appeared to proceed on the presumption that they are no different from any other internal memoranda.(14) The status of e-mail messages has not been ruled on yet in Britain and Canada for these purposes, but, consistent with the Australian decision, it is unlikely that any records of such communications would be excluded from the scope of the definition of documents. In recent proceedings in England for defamation, a plaintiff corporation is reported to have obtained injunctions for delivery of copies of internal e-mail messages between employees of a competitor spreading false rumours of the financial difficulties facing the defendants.(15)

In each country, however, there are district jurisdictions, and some have different discovery systems.

1. Britain

   In Scotland, litigants are obliged to produce only the documents they rely on, unless required by opponents to produce others, and the procedure enabling them to do so (commission and diligence) involves an application to the court to appoint a commissioner to recover documents from the holder.

   In England and Wales, the duty to give general discovery of all relevant documents prevails. As a general rule, discovery is a standard procedural step, applicable in all cases unless excluded or postponed by a direction of the court. Where discovery involves potentially large volumes of documents, the disclosure may be limited to the most significant relevant documents, although the basis of selection in such situations is defined only in general terms of fairness and reasonableness of the costs incurred.

   The rules permit a party to refuse unnecessary production of documents (e.g., because they are of only limited relevance) or discovery will be ordered only (and only ordered at a particular time or stage in proceedings) if and so far as it is necessary either for disposing fairly of the cause or matter or for saving costs.(16) The court will not allow oppressive discovery of even relevant documents.(17) In England and Wales, this rule has to be viewed in the light of Practice Direction (Civil Litigation: Case Management), which provides that the court will pay particular attention to reducing cost and delays in litigation by placing limits on discovery.(18) The exercise of the court's discretion in relation to extensive computer records was considered in the English case of Derby & Co. Ltd. v. Weldon (No. 9), discussed later.

2. Australia

   In most Australian jurisdictions, with the exception of New South Wales, the rules relating to discovery are similar. As a general rule, there is no automatic right to discovery in cases arising from death or personal injury. In those cases, discovery can be obtained only by way of a court order. In "straightforward" personal injuries actions, such an order usually will be limited to a specific class or classes of documents.

   In New South Wales, the Supreme Court Rules have recently been amended in an attempt to limit unnecessary discovery without unduly...