Rule 9-1 sets out the requirements for discovery and inspection of documents. It allows you to get access to the documents of the other party that are relevant to your case and requires you to allow the other parties to see your relevant documents.
What is a Document?
A “document” for the purpose of a list of documents is not just a piece of paper. Rather, just about anything that stores information can be a document.
Rule 1-1 sets out the definition of “document.” The definition is quite broad, and includes photographs, films, sound recordings, any record of a permanent or semi-permanent character, or any information recorded or stored by any means of any device.
When you’re looking for documents, make sure you think of disks, tapes, and computer files, as well as photographs and films. Importantly, emails are “documents”. You will have to consider whether you have emails relevant to the case.
Once you expect litigation may occur, you cannot destroy documents that are relevant to that litigation. This means that you cannot shred or recycle important documents, delete emails, erase recordings, etc. Rather, you have an obligation to retain the relevant documents.
Which Documents Must be Disclosed?
Generally, there are two types of documents that have to be listed and disclosed:
- Documents that are or have been in your possession or control that could prove or disprove a “material fact”
- Any other document you intend to refer to at trial
To begin the discovery of documents process, you must prepare a list of documents in Form 20.
A “material fact” is a fact that is relevant to the claim or a defence to a claim.
The “material facts” in litigation are those facts relevant to the cases as described in the pleadings (the notice of family claim, response to family claim, any counterclaim, and the response to counterclaim)
You have to list things that help or hurt your case. You do not get to choose not to list a document because it is harmful to your position.
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