News
Discovery: is it necessary to describe every document?
First published in LawTalk, 4 June 2007.
It has been three years since the High Court discovery rules were amended and a major change to those rules allowing document listing seems to have gone largely unnoticed.
The new rules appear to do away with the requirement for every document in the open part of the list to be described, instead making numbering of each document sufficient. However, the previous approach of fully describing every document in the open part of the list is still, for the most part, being followed.
The amendment
The High Court Amendment Rules 2004 instigated a number of changes relating to the discovery and inspection of documents, effective from 1 November 2004.
Up until then, rule 298 of the High Court Rules had prescribed that a list of documents must "enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified".
In 2004, this rule was substituted by rule 12 of the High Court Amendment Rules 2004, which states that the schedule to a list of documents must "identify or list" the documents. Rule 298(1)(a) provides that documents that are in the control of the party and for which the party does not claim privilege or confidentiality "may be identified by number".
It therefore seems that documents in the open part of the list do not need to be individually described. It is now satisfactory simply to number each document and refer in the affidavit to the range of numbers. This change is reflected in the amended form of the affidavit (Form 26), in which documents in Part 1 are described simply as "Documents numbered 1 to ...". While Form 26 is optional, it does set out what is required to comply with the rule.
This change applies only to documents in the open part of the list - rule 298(1)(a). The rules now distinguish between documents in the open part and documents in the subsequent parts of the list. It seems that documents in any part other than the open part of the list must still be described separately, unless they fall into the traditional exception under which documents may be grouped. That is, for documents in the second and subsequent parts of the list, if they are of the same nature and it is possible to provide an accurate global description of the individual documents, then there is no need to describe each document individually (rule 298(2)).
The change is not dealt with in the commentary in McGechan on Procedure, although that commentary has not been updated since the change came into effect. The change is discussed in Sim’s Court Practice (NZ): "The documents in the first part do not need to be individually described. Each document should be numbered and the affidavit will simply refer to the range of numbers. This specific rule cuts across earlier authorities requiring first part documents to be listed in more detail."
It should be noted that the equivalent District Court Rules 1992 (rule 319, 320 and Form 27) have not been similarly amended.
The change was considered recently by Justice Hansen in Ferrier Hodgson & Anor v Vincent Siemer & Ors CIV 2005-404-1808. In that case, a number of documents in the plaintiff’s list of documents had "been identified by number but compendiously described rather than individually itemised in the list of documents". The first defendant submitted that the list did not comply with the High Court Rules. The court noted the distinction which is now drawn between documents in the open part of the list and documents in the second and subsequent parts and contrasted that with the former r298 which made no such distinction. The Court found that the way in which the plaintiff had listed documents in all categories did conform with the rules.
It is interesting to note that his honour stated that the change in the rules "gives effect to the rule laid down in Hunyady v Attorney General [1968] NZLR 1172 (CA) that documents must be separately identified but, in the case of a file or bundle of documents, that may be achieved by a generic description provided individual documents or pages are numbered." The change in the rules seems to go further than this and allows for documents to be identified by number only, without even the need for there to be a generic description. As noted, in Form 26 documents in Part 1 are described simply as "Documents numbered 1 to ...".
The implications
The change has positive implications. The Law Commission’s Preliminary Paper Reforming the Rules of General Discovery described the need to compile a written list of documents as a "dispiriting task" and concluded that "the time required can run into months, and the cost to the parties of the whole process can be enormous".
Allowing documents in the open part of the list to be numbered rather than having to be described helps address these issues. Most significantly, the time taken by lawyers to prepare affidavits of documents will be reduced, particularly as the open part of the list is often the bulk of the list. This, in turn, has benefits for the client by reducing the financial cost of the discovery process.
Removing the obligation to list open documents may also reduce the temptation to break client files and rearrange them chronologically. In Cedco Publishing Company v Hodder Moa Beckett Publishers Ltd (High Court, Auckland, CL 33/00, 29 May 2001, para 47) Williams J commented of this "undesirable" practice that: "Not only can it give rise, as here, to allegations of omission but, as is well understood, placement of documents and more particularly of undated documents on a file between dated documents can often assist in such matters as the state of persons’ knowledge at the time or in timing the creation of undated documents. Multiple copies of the same document may be annotated or filed differently by different persons thus giving rise to different implications."
While the change makes listing documents less onerous, it is arguable that inspection of documents will now be more time consuming. It will be difficult to readily ascertain from a numbered range of documents without descriptions, which documents will be useful to a party’s case. Each document listed will need to be inspected. It is not uncommon for inspecting parties to look only at a selection of documents or even, to request only copies of a selection without ever looking at the original documents. This practice should be discouraged. It is prudent to inspect all discovered documents rather than relying on the brief descriptions in the document list to narrow inspection.
An important point to note is rule 313, which provides: "A document that should have been included in a party’s affidavit of documents may be produced in evidence at the hearing only with the consent of the other party or parties or the leave of the Court." The amendments increase the likelihood of arguments at trial as to whether or not a particular document has been discovered, particularly when numbering such as 44, 45, 45a, 45b, 45c, 46 has been used.
Optional
The amended form of rule 298(1)(a) states that documents may (not must) be identified by number. The optional wording of this section leaves it open for a party to list the open documents more fully if it chooses to do so.
A party may choose this option if it wishes to use rule 314. This provides that, unless challenged, the party inspecting the documents listed in another party’s affidavit is deemed to have admitted the authenticity of the documents, including that documents listed as originals or copies in the list are in fact original documents or true copies respectively. This can not be invoked if the documents are solely identified by number, although, in practice the rule is rarely used.
Time to change?
The Rules Committee based its 2004 amendments to the discovery rules on the 2002 Law Commission report General Discovery, which considered ways to eliminate waste and cost from the discovery process. The changes that have been made to rules 297 and 298 are a step towards achieving this goal.
Numbering open documents sequentially significantly reduces the time and cost of the document list, facilitating a more efficient discovery overall. There seems to have been little move among the profession to change so far – that may be more a result of the amendment receiving little or no trumpeting. Perhaps it’s now time to change that?
