The Importance of Discovery in Litigation Proceedings

If you are involved in a legal dispute, you are bound to come across a term called “discovery” – it’s a crucial phase in the whole litigation saga. The discovery process, which is governed by the Rules of Court, plays a key role in all matters as it ensures that they are conducted fairly and that they are resolved efficiently.

With that titbit, let’s delve a little deeper into what discovery entails and its significance in litigation proceedings.

What is Discovery?

Discovery is a process in both civil and criminal proceedings, as provided for in Rule 35 of the Uniform Rules of Court, where parties exchange non-privileged documentary evidence prior to the trial. The evidence provided must – as may be obvious – be relevant to the issues at hand (in dispute). The evidence must, according to Rule 35(1), be or have at some point in time been in the possession or control of the party providing or being asked to provide the evidence.

The purpose of discovery is to narrow down the issues in dispute and to ensure that both parties have mutual knowledge and access to all relevant facts essential to the matter in dispute. By doing so, the parties to the dispute ensure that the matter is decided on the basis of the facts themselves, rather than as a result of surprise tactics and acts of concealment (of facts that is).

The exchange of documents includes a wide range of materials, including emails, letters, contracts, financial records, tape, electronic, digital, or other forms of recordings and other documents relating to the matter in question. It’s important to note that the parties are obliged to include documents that can both prove and disprove their claim.

This process is like “laying your cards on the table,” setting everything out in the open so that the parties have access to the exact same information. From there each lawyer can gather evidence that supports their client’s case, allowing them to better prepare for the trial and settle out of court if necessary/possible.

It’s important to note that in the matter of Carpede v Choene NO 1986 (3) SA 445 (O) the Court held that a party is only obliged to discover documents which either directly or indirectly damage its own case or which advance the case of the opposing party — documents which tend only to advance the case of the party making the discovery or which tend to damage the case of the opposing party need not be discovered.

The rule as set out by the matter above, is subject to certain exceptions. Documents that don’t need to be discovered include –

1. Statements of your own witnesses taken for the purposes of the proceedings (not expert witnesses);
2. Communications between attorney and client;
3. Communications between attorney and advocate;
4. Communications between a party and an agent and which relate to evidence likely to be adduced at trial;
5. Communications made without prejudice in a bona fide attempt to negotiate settlement
6. Documents of a self-incriminating nature;
7. Communications which fall within parameters of marital, state, or public privilege;
8. Communications between attorney and advocate, and
9. Pleadings, affidavits, and notices in action.

The above documents are privileged documents. They must be discovered only insofar as they must be listed in the discovery affidavit. They needn’t be handed over to the opposing party.

Why is discovery important?

Discovery serves multiple crucial purposes including -

1. ensuring that both sides have equal access to all relevant information, thereby preventing unnecessary surprises during trial and enabling each party to build a robust case based on all the facts and evidence available;
2. allowing the parties to better understand the legal issues at play so that they can better prepare for trial;
3. ensuring all factual issues are resolved before trial by allowing each side to focus on presenting only those necessary facts at trial. It allows both sides to narrow down the issues that must be argued in court.
4. fostering openness and discouraging the concealment of evidence, thereby promoting a fair legal process. Should any party feel that the discovery by their opponent has been insufficient they may call for further and better discovery. By encouraging an open and honest process, each side can learn more about each other’s case, uncovering any new or additional evidence that could be used to their best advantage during trial.
5. revealing the strengths and weaknesses of each case, discovery can serve as a powerful tool for negotiations and settlement discussions, saving the parties time and costs. It empowers parties to negotiate with full knowledge, enhancing the potential for amicable resolutions. This can often lead to more efficient resolutions of disputes without having to go through protracted court proceedings.

If we boil discovery down to its bones, it’s important because -

• it gives both sides the pertinent information they need to evaluate the specific facts of a matter;
• it enables both sides to better prepare legal arguments, and
• it allows both sides to make knowledgeable and informed decisions throughout the litigation process.

What happens if a party fails to discover?

Rule 35(7) of the Uniform Rules of Court sets out as follows –

“If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence.”

Failure to comply with discovery obligations as set out above, can not only lead to the other side proceeding with an application to compel compliance along with a punitive costs order but may even result in the court dismissing the claiming or striking out the defence.

How can one manage large amounts of documents and data?

With the discovery process underway, you are likely to be inundated with large volumes of documents and/or data. To be honest, whether you are dealing with discovery or not, your law firm is probably dealing with a vast amount of data in any event.

So, it’s crucial that – from the outset – you effectively manage your document storage and filing solutions to ensure that you streamline your litigation preparation process.

With its ability to uncover relevant evidence, educating both attorney and client, and narrowing down issues on which the parties agree or disagree, discovery is a critically valuable tool for ensuring fair and efficient litigation.

Although we have taken the utmost care to ensure that this information is correct – having taken this information directly from the Uniform Rules of Court – we urge you to consult with a suitably qualified legal practitioner who will be able to answer any questions you may have on the discovery process.

Please feel free to contact us to see how we can best help you.

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!

(Sources used and to whom we give thanks – Minute7; Studocu).