Broadly speaking, the process of discovery in litigation is the process by which relevant documents are searched for, identified and provided to the other party.
The first phase of discovery is when a pleading (statement of claim or statement of defence) has been filed. At that time, the party filing the pleading must serve on the other party or parties a list of documents upon which they rely. This initial disclosure will include all documents that are referred to in the pleading or any other significant documents relating to that party’s case.
The second phase of discovery takes place at case management conferences. This second phase is designed to flesh out a broader range of documents that will be relevant to the case. Orders can be made for either standard discovery or tailored discovery at this time.
Standard discovery includes disclosure of all documents which might support, prejudice or disadvantage that party’s case or which might support, prejudice or disadvantage the other party’s case. Tailored discovery is appropriate where more particular discovery is required, say in relation to invoices covering a particular period.
Traditionally, the process of completing discovery obligations tended to be an adversarial one. This has been replaced by a more cooperative and consultative approach that must be taken between counsel. Parties are required to cooperate in order to ensure that there is agreement reached on topics such as what documents should be discovered.
Discovery is an extremely important obligation that parties must comply with. As soon as it is reasonably contemplated that litigation might take place, any prospective parties must take all reasonable steps to preserve and protect any documents that might be likely to be discoverable. This obligation extends to all documents, whether in hard copy or stored electronically. The obligation to discover documentation continues throughout the preceding. Aligned with the discovery obligation is the importance of conducting a proper search for any documents that might be relevant.