Parties to litigation will normally be required to give either general discovery or discovery by categories, the purpose in each case being to enable a proper examination of the matters in dispute. In some courts in Australia, there has been a recent change toward discovery being provided after rather than before the service of evidence, and to courts requiring the parties to explain why discovery is necessary in a particular case rather than it being assumed that discovery will occur.

If an order for general discovery is made, each party will be required to produce a list of the documents relevant to the issues in dispute, which will include the following:

• Documents on which a party relies
• Documents that adversely affect the party’s own case
• Documents that adversely affect another party’s case
• Documents that support another party’s case

Parties will frequently be ordered to give discovery by reference to categories of documents identified as relevant to a matter in dispute. In such cases, if a document falls within the description of the category, it must be discovered.

“Document” is very broadly defined and includes virtually any record of information (e.g., letters, notes, computer files, emails and minutes of meetings). Within the parameters of either general discovery or discovery by categories, parties will be required to produce all documents within their possession, custody or power. This may include documents held by third parties, such as a party’s agents, solicitors and accountants.

Parties are not generally required to discover privileged documents. However, privileged documents must be separately identified as privileged. It is not uncommon for a party to request a list of another party’s privileged documents for the purposes of assessing whether privilege has been properly claimed and whether it can be challenged.

That a document is confidential or commercially sensitive is not in itself a ground for withholding it from production. All discovered documents are protected by an implied undertaking that they may only be used for the purposes of the proceedings in which they have been discovered and must not be used for any collateral purpose. Additional protective measures may be agreed for confidential documents, such as a regime to restrict access only to certain people involved in the litigation.

Parties must not withhold or destroy discoverable documents, and severe penalties apply if this occurs, including, in some jurisdictions, the possibility of criminal penalties. Parties must disclose in their list of documents any documents that are no longer in their power, custody or control and explain what has become of those documents.

Parties to proceedings may also use other compulsory court processes to obtain documents from third parties, for example, by issuing a subpoena. Production of documents pursuant to a subpoena may be challenged where production would be oppressive or when the classes of documents sought by the subpoena are not sufficiently defined. All documents answering the terms of the subpoena, including privileged documents, must be produced to the court. Privileged documents must be produced in a separate sealed envelope marked “privileged.”