Discovery of Documents

Question 1

*What additions should be made to the list of documents form to make it compliant with the rules

Answer 1

• The heading
• include “other than those in part 2”
• Certification by attorney indicating that he has explained the duty of disclosure and consequences
  -Filed by

Question 2

what must the court consider in making an order for specific disclosure?

Answer 2

in deciding whether to order specific disclosure, the court must consider whether such disclosure is necessary in order to dispose of the claim fairly or to save costs, having regard to the likely benefits and costs of the disclosure, and whether the party against whom the order is proposed to be made had the financial resources to comply. If the answer to the latter question is in the negative, the court may make the order on terms that the claimant pays the other party’s costs in making disclosure.

Question 3

What are the main categories of disclosure

Answer 3

Standard Disclosure

Specific Disclosure

Question 4

what are the possible consequences of misusing a document disclosed?

Answer 4

Misuse may be punished as contempt or by striking out the subsequent/collateral proceedings, or it may be restrained by an injunction.

Question 5

Should without prejudice communication be included in the list of documents?

Answer 5

Some attorneys include it because even though it is made without prejudice, filing a list of documents with it included indicates that there is no intention to waive privilege

Question 6

Describe the privilege against self-incrimination

Answer 6

no one is duty bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose him or her to any criminal charge, penalty, or forfeiture which the judge regards as reasonably likely to be preferred or sued for.

Question 7

what is the position with respect to waiver of the different types of privileges?

Answer 7

Public Interest Immunity - cannot be waived

Without Prejudice Communications - can only be waived by both parties

Legal Advice Privilege - can be waived by party who enjoys the privilege

Question 8

Waiver of privilege may be implied. Explain.

Answer 8

disclosure of a privileged document to the other side or exhibiting it in an affidavit would be examples of implicit waiver. 

Question 9

What does inspection mean?

Answer 9

permitting the documents to be seen, including providing a copy

Question 10

What is the difference between legal advice and litigation privilege?

Answer 10

Legal advice privilege is broader than litigation privilege and allows clients to discuss their legal position with their lawyers in the knowledge that their communications will remain confidential, even when there is no litigation in prospect.

Question 11

True or False.

The Rules require the client to conduct a reasonable search for the documents to be disclosed.

Answer 11

False.

The rules do not provide for this in Belize.
But you may advise your client to do so.

Question 12

True or False.

Someone who is a witness cannot be compelled to make disclosure

Answer 12

True

Question 13

True or False.

Even if an expert report is privileged by litigation privilege, that privilege cannot apply if the party intends to rely on the report at trial, because it must be served on the opposing side.

Answer 13

True.

Question 14

What is a Norwich Pharmacal Order?

Question 15

What is attorney-client privilege or legal advice privilege?

Answer 15

This privilege covers confidential communications between a lawyer and their client for the purpose of giving or receiving legal advice.

Provided the communication is confidential when created, it will remain confidential. As with litigation privilege, the privilege can be lost by circulating privileged material to third parties.

Question 16

What steps can a party take to secure inspection?

Answer 16

Generally, once a party discloses a document in a list of documents, the receiving party has a right to inspect documents on the list, provided that privilege has not been claimed.

• ensure that the documents you wish to inspect are still in the other’s possession
• give written notice of the wish to inspect
• ## inspection should be permitted within 7 days of the notice

Question 17

How are documents that come to your attention after standard disclosure has been filed to be treated?

Answer 17

A supplemental list of documents should be filed within 14 days.

Question 18

What part of the Rules deals with Disclosure

Answer 18

Part 28

Question 19

What is a Without Prejudice Communication?

Answer 19

Communications, oral or in Writing, made with the genuine intention of negotiating a settlement of litigation

Question 20

What does the discovery process involve?

Answer 20

The discovery process for documents involves disclosure (revealing their existence) and Inspection (permitting documents to be seen, including by providing a copy)

Question 21

What does an order for specific disclosure require the party to do?

Answer 21

an order for specific disclosure is an order that a party must do one of more of the following things:
 - disclose documents or classes of documents specified in the order; or
-  carry out a search for documents to the extent stated in the order; and
 - disclose any documents located as a result of that search.

Question 22

What is a ‘document’?

Answer 22

anything on which information is recorded. This is not necessarily limited to paper. It can for instance be DVDs, CDs and microfilm

Question 23

What does disclosure mean?

Answer 23

Revealing the existence of a document

Question 24

A List of Documents is divided into two schedules. What is contained in each schedule?

Answer 24

Schedule 1 contains two parts.
In Part 1 of Schedule 1, a party lists those documents which the opposing side is entitled to inspect.
In Part 2 of Schedule 1, a party lists those documents which are privileged and which the other side therefore has no right to inspect.

Schedule 2 lists those directly relevant documents the party had but no longer has in his possession.

Question 25

True or False.

A party’s statement as to the relevance of documents for the purposes of standard disclosure is generally considered to be conclusive.

Answer 25

True

Question 26

What are the client’s obligations regarding disclosure?

Answer 26

duty to disclose relevant document in their control

duty to disclose where documents come to his attention later

Question 27

Why is the Statements of case filed in the court disclosed in the list of documents by some attorneys? and where is it listed

Answer 27

some attorneys list all the court documents. Others do not at all include this as they are of the view that the court documents are a matter of record and need not be included.

Other attorneys list it to forego the need to request that the court permit reliance during a trial.

It is listed in Part 1 Schedule 1 (as copies)
And repeated in Schedule 2

Question 28

What is the rule if a copy of a document contains a modification?

Answer 28

Both must be disclosed.
The original and the copy if it contains a modification, obliteration, or other marking or feature which is not present in the original or any copy of the document which is being disclosed.

Question 29

What is without prejudice privilege?

Answer 29

This privilege protects communication such as correspondence between attorneys and their clients in pursuance of attempts to settle claims and protects these communications from production in court and its purpose is to help promote the negotiation of settlements of claims.

Question 30

if the party is a company, what determines if a document is in their control ?

Answer 30

With regards to a Company, you have to examine how close the relationship is to determine the degree of control.

A subsidiary company’s documents may be held to be in the control of its parent

Question 31

What is ‘Directly Relevant’?

Answer 31

This has a triple-option test. A document is directly relevant if -

• a party intends to rely on it
• it tends to adversely affect the party’s case
• it tends to support another party’s case

Relevance is to be determined by reference to the statements of case, and is not enlarged by reference to matters raised elsewhere

Question 32

True or False.

A party should only disclose documents that are both in their possession and their control.

Answer 32

False.

it is not necessary that they both possess and control the document simultaneously.

Question 33

The discovery of documents involves two stages. what are they?

Answer 33

Disclosure and Inspection

Question 34

What is an Order for Specific Disclosure?

Answer 34

Under an Order for specific disclosure, a party may be ordered to disclose documents or classes of documents specified in the order and/or documents located in a search mandated by (and the extent of which is set out in) the order

Question 35

what are the two types of legal professional privilege?

Answer 35

Legal Advice Privilege and Litigation Privilege

Question 36

What are the features of a document protected by litigation privilege?

Answer 36

• The document is a communication between:

(i) lawyer and client

(ii) lawyer and a third party (e.g. an expert, witness, or other professional), or

(iii) the client and a third party;

• Litigation must be in progress or in contemplation;
• The communications must have been made for the sole or dominant purpose of conducting that litigation; and
• The litigation must be adversarial.

Question 37

What is Public Interest immunity?

Answer 37

Documents are to be withheld from production (and possibly disclosure) if such production would be injurious to the public interest.

Question 38

What are the two categories of documents protected by Public Interest Immunity?

Answer 38

• those falling within a class of documents requiring protection
• those which require protection due to the sensitivity of their contents

Question 39

True or False.

Someone who is a witness cannot be compelled to make disclosure

Answer 39

True.

Question 40

True or False.

Subject to the provisions of inadvertent inspection, where privileged material comes into the hands of the other party, that party may make use of the material in the proceedings, and it makes no difference how it was obtained (even if it was by theft). 

Answer 40

True.

Question 41

True or False.

Documents are disclosed voluntarily in respect of statement of case, witness statement, or affidavit and those do not have the same protection as those disclosed in Standard Disclosure.

Answer 41

True

Question 42

True or False.

The documents disclosed are only to be used for the present litigation.

Answer 42

True, subject to the exceptions set out in the CPR

Question 43

The obligation to disclose is a continuing one. What does this mean?

Answer 43

This means that where documents covered by the duty to disclose come to a party’s notice, that party must within 14 days serve a supplemental list.

Question 44

What is ‘control’?

Answer 44

This has a triple option test and involves documents that -

• are or were in the party’s physical possession;
• that the party has/has had the right to possession of; or
• that the party has/has had a right to inspect or take copies of

Question 45

What is litigation privilege

Answer 45

Litigation privilege is more limited in scope and is designed to allow parties to investigate potential disputes without the worry that those investigations could be disclosed to the other side. It can exist outside of the typical client/solicitor relationship and covers any document or communication which has been produced for the purpose of obtaining information or advice in connection with existing or contemplated litigation

Question 46

What is a Without Prejudice Communication?

Answer 46

Communications, oral or in Writing, made with the genuine intention of negotiating a settlement of litigation

Question 47

True or False.

An order for specific disclosure can be made in relation to matters not set out in a statement of case.

Answer 47

False.

Question 48

True or False.

The CPR provides that a party may inspect and copy a document mentioned in a statement of case, witness statement or summary, affidavit, or expert report, even if these documents are not included in the list of documents filed.

Answer 48

True

Question 49

What is an inadvertent inspection? And what is the rule regarding this?

Answer 49

if privilege is claimed but inspection is then inadvertently allowed;

Where a party inadvertently allows a privileged document to be inspected, the party who has inspected it may use it or its contents only with – 
(a) the permission of the Court; or  
(b) the agreement of the party disclosing the document  

Question 50

If privilege was not claimed, and a document was inadvertently disclosed, can the other party use the document?

Answer 50

the receiving party does not need permission to use the document and the party inadvertently allowing disclosure and inspection would need to seek an injunction to restrain use of the document.  

Question 51

True or False.

Disclosure can be used to find evidence from the other side when one does not have the material to support their claim.

Answer 51

False

Question 52

In satisfying an Order for standard disclosure, what must be disclosed?

Answer 52

all documents which are directly relevant to the matters in question in the proceedings

Question 53

What is the Attorney’s obligation regarding disclosure?

Answer 53

To explain to his client the necessity for full disclosure and the consequences of failure and certify on the list of documents that the explanation has been given.

Question 54

What are the consequences of failure to disclose documents?

Answer 54

• one cannot rely on or produce the document at trial
• one’s statement of case may be stuck out