Doing without Discovery?

Some Comparative perspectives

Discovery in the common law jurisdictions

The Queensland Uniform Civil Procedure Rules 1999 stipulate that a party to a proceeding ‘has a duty to disclose to each other party each document’ in its possession or under its control that is directly relevant to any allegation in issues in the pleadings or directly relevant to a matter in issue in the proceeding, if there are no pleadings (s 211). The Civil Procedure Rules in the United Kingdom state even more clearly what is well-known here, ie that the duty extends to evidence that supports the other side’s case in litigation: Standard disclosure requires a party to disclose “(b) the documents which — (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case […]’ (Rule 31.6, Civil Procedure Rules).  The Australian Federal Court rules use the same terms to describe the documents that the party, upon whom a Notice of Discovery has been served with leave of the Court, must disclose.

There is thus no doubt in Australia that a party to litigation cannot choose to hide documents in its possession that are adverse to its own case; it must disclose them if they are relevant. Knowing that it will be obliged to disclose documents that are not favourable to its case will naturally impact on a party’s decision to litigate in the first place. Although apparently straightforward, the Rules’ application to a given document may well present some difficulty; it will depend, for instance, on precisely how the case is pleaded, whether or not a certain document might ‘adversely affect’ another party’s case.

Delay and cost inflation may result from the practical implications of a broad duty of discovery, sometimes to such an extent that the 2009 Report of the Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System¹, considered it a potential barrier to justice. For that reason Discovery is now under investigation on a reference from the Federal Attorney-General, which requested the ALRC to inquiry into and report on²:

• the law, practice and management of the discovery of documents in litigation before federal courts; ensuring that cost and time required for discovery of documents is proportionate to the matters in dispute, including but not limited to:
• the effectiveness of different types of discovery orders
• the effectiveness and enforceability of requiring parties to identify and disclose critical documents as early as possible
• the effectiveness of different costs orders
• to limit the overuse of discovery, reduce the expense of discovery and ensure key documents relevant to the real issues in dispute are identified as early as possible;
• the impact of technology on the discovery of documents.

To that end, the ALRC is to have particular regard to ‘alternatives to discovery; the role of courts in managing discovery, including the courts’ case management powers and mechanisms to enable courts to better exercise those powers in the context of discovery; […]³’.

In Queensland as in other State jurisdictions, discovery is a significant topic in the current debates about potential reform of some aspects of civil procedure, also including the possibility of bestowing greater powers of judicial case management upon the civil courts.

Discovery in civil law jurisdictions?

In that light it is interesting to consider the fact that in civil law jurisdictions, there is no general obligation to disclose all relevant documents in one’s possession. Parties to civil litigation have no duty to alert the other side to any documents other than those they intend to rely on to support their own case. In other words, parties construct their case around documents selected from what they happen to have in their own possession. They can’t expect to rely on any documents the other side might have.

This of course greatly curtails the process of evidence gathering, as little or no pre-trial interaction between parties is required. In Germany there is not even a general obligation to provide to the other side (copies of) the documents on which a party intends to rely to support its submissions; thus article 142 of the German Zivilprozessordnung (Civil procedure rules) provides ‘(1) The court may order that a party produces to the court documents and the like that a party to the proceeding or a third party has in its possession and on which a party has relied’⁴. However, in France, the Code de Procedure civile (Code of civil procedure) stipulates that a party which refers to a document is obliged to communicate it to the other side prior to the final hearing⁵. It is implicit in the relevant provisions that parties are only required to provide those documents that support their own position to the other side⁶.  

Thereby the cost, delay and strategic abuse of discovery that can occur in Australia, and is referred to by the ALRC, is readily avoided. On the other hand, the evidence on the basis of which a case is decided is naturally limited by this approach: the trier of fact may be denied access to probative documents that a party opts not to use because they are adverse to its case.

Discovery in context

Of course these starkly contrasting approaches to the rules for evidence production must be seen in the context of broader systemic differences between civil law and common law jurisdictions. The latter rely heavily on settlement of disputes to manage the volume of cases filed, whereas the former focus more on expeditious and cheaper court resolution of a greater volume of cases. In France and Germany, all the essential aspects of the factual evidence, as relied on by the litigant, tend to be simply referred to in the general submissions (or ‘conclusions’ in France) filed with the court. There are no extensive affidavits, nor is evidence normally comprehensively tendered during the trial or final hearing through oral testimony. Rather, witnesses are only on hand to respond to possible questions from the bench relating to their evidence as contained in the formal documents in the case file.

In civil law jurisdictions court decisions tend, partly as a consequence, to be much shorter, identifying, stating and applying principles of law to a potted version of the facts, rather than painstakingly recounting the facts and giving detailed attention to similar facts in precedent cases. The varying approaches to the parties’ obligations to produce evidence partly result in and from this difference in judicial technique.

Conclusion

Nonetheless it is interesting to reflect on the fact that discovery, which seems to Australian lawyers so critical to a fair system as it ensures that all probative and admissible evidence is before the court, barely figures in civilian thinking. On the other hand, in other ways Australian law is more selective as to what a court might see: whereas the common law applies strict exclusionary rules, which may result in probative evidence not being put before the decision-maker, civilian law applies fewer exclusionary rules, relevance as interpreted by the judge being the sole arbiter of admissibility.

As well as putting the Australian approach in perspective, the differences with civilian jurisdictions in terms of discovery also highlight some of the issues that will arise in cross-border litigation, where the parties own jurisdictions may impose very different obligations on parties to civil litigation.

These issues will be further addressed by a French and a German lawyers Frederic Veniere and Wolfgang Babeck during a Comparative Law Seminar chaired by Justice Douglas of the Supreme Court, entitled ‘“Discovery from a Comparative Perspective: German, French and Australian approaches” to be held at the Banco Court, Supreme Court Building, Brisbane on Friday 17 September at 5:30; see http://www.bond.edu.au/faculties-colleges/faculty-of-law/events/index.htm

William van Caenegem, Professor of Law, Bond University⁷

Footnotes

1. See http://www.ag.gov.au/a2j
2. See Discovery of Documents in Federal Courts: http://www.alrc.gov.au/inquiries/discovery
3. Robert McClelland, Attorney-General, Terms of Reference, 10 May 2010; the ALRC is to report no later than 31 March 2011.
4. Unofficial translation; the original text is as follows: (1) Das Gericht kann anordnen, dass eine Partei oder ein Dritter die in ihrem oder seinem Besitz befindlichen Urkunden und sonstigen Unterlagen, auf die sich eine Partei bezogen hat, vorlegt.[…]
5. Code de Procedure Civile, article 132; if the document is not communicated in time the judge can exclude reliance on it at the final hearing: article 135.
6. In case of failure to produce a document to the other side, or where it is in the possession of a third party, a party to the proceedings can apply to the court for an order to produce it: article 133, 134; 138-142.
7.  My thanks to Wolfgang Babeck and Frederic Veniere for information provided for use in this short article, and their extensive comments.