The new Rules of Court 2021 (ROC 2021) came into effect on 1 April 2022. All civil proceedings, including appeals, commenced on or after 1 April 2022 will be governed by the ROC 2021. However, civil proceedings commenced before 1 April 2022 remain governed by the predecessor version of the Rules of Court, i.e., the Rules of Court 2014 (ROC 2014). Accordingly, this section will cover:

• Discovery for proceedings commenced on or after 1 April 2022 to which the ROC 2021 apply
• Discovery for proceedings commenced before 1 April 2022 to which the ROC 2014 apply

Production of documents under the Rules of Court 2021

The ROC 2021 introduces a number of key changes to terminology. In the context of discovery/disclosure, the ROC 2021 refers to the "production of documents."

The rules on production of documents under the ROC 2021 seek to narrow the scope of production of documents and reduce the time and costs expended in the production of documents process. The court may, at a case conference, order that the parties in an action must, within 14 days after the case conference, exchange a list of and a copy of all documents in their possession or control which fall into the following categories:

• All documents that the party will be relying on
• All known adverse documents, which include documents that a party ought reasonably to know are adverse to its case

In other words, the obligation to produce documents is not limited to the production of adverse documents that a party is actually aware of and includes the production of adverse documents that the party could have knowledge about through reasonable checks and searches.

"Control" has a wide meaning and the obligation to produce documents would include, for example, documents in the party's custody or power which were terms previously used under the ROC 2014.

Further, a requesting party may apply to court for the production of a specific document or class of documents in a party's possession or control. However, the court will not order the production of: 

• Documents that merely lead a party on a train of inquiry to other documents, except in a special case
• A party's private or internal correspondence unless such correspondence are known adverse documents or in a special case
• Subject to any written law, documents subject to any privilege or where production would be contrary to the public interest

Discovery under the Rules of Court 2014

Pursuant to the ROC 2014, the court may at any time order a party or parties to give discovery by drawing up and serving on any other party a list of the documents relating to any matter in question between them in the action that are or have been in that party's possession, custody or power. The documents that must be disclosed include documents falling within the following categories:

• Documents on which that party relies or will rely
• Documents which could either
  • Adversely affect the party's own case
  • Adversely affect another party's case
  • Support another party's case

A party that has served a list of documents on any other party must allow the other party to inspect the documents referred to in the list and to make copies of them.

Further and/or specific discovery may also be sought by application to court. In particular, an application for the discovery of specific documents or a specific class of documents may include, in addition to the documents in the categories above, any document that may lead the party seeking discovery of it to a train of inquiry resulting in that party obtaining information that may either:

• Adversely affect its own case
• Adversely affect another party's case
• Support another party's case