Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 13 July 2020 at 03:41)
Part 21
Part 21 Discovery, inspection and notice to produce documents
Division 1 Discovery and inspection
21.1   Definitions
(cf SCR Part 23, rule 1; DCR Part 22, rule 1)
(1)  In this Division—
excluded document, in relation to proceedings the subject of an order for discovery, means any of the following documents—
(a)  any document filed in the proceedings,
(b)  any document served on party A after the commencement of the proceedings,
(c)  any document that wholly came into existence after the commencement of the proceedings,
(d)  any additional copy of a document included in the list of documents, being a document that contains no mark, deletion or other matter, relevant to a fact in question, not present in the document so included,
(e)  any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in the list of documents,
but does not include any document that the court declares not to be an excluded document for the purposes of those proceedings.
list of documents means a list of documents referred to in rule 21.3.
order for discovery means an order referred to in rule 21.2.
party A means a party to whom another party is giving discovery, or being ordered to give discovery, of documents.
party B means a party who is giving discovery, or being ordered to give discovery, of documents.
party B’s affidavit means an affidavit prepared in relation to the list of documents under rule 21.4.
Note.
 See the Dictionary for further definitions including, in particular, a definition of possession.
(2)  For the purposes of this Division, a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.
21.2   Order for discovery
(cf SCR Part 23, rule 3(1), (2) and (3); DCR Part 22, rule 3(1), (2) and (3))
(1)  The court may order that party B must give discovery to party A of—
(a)  documents within a class or classes specified in the order, or
(b)  one or more samples (selected in such manner as the court may specify) of documents within such a class.
(2)  A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances.
(3)  Subject to subrule (2), a class of documents may be specified—
(a)  by relevance to one or more facts in issue, or
(b)  by description of the nature of the documents and the period within which they were brought into existence, or
(c)  in such other manner as the court considers appropriate in the circumstances.
(4)  An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
21.3   List of documents to be prepared
(cf SCR Part 23, rule 3(5) and (6); DCR Part 22, rule 3(5) and (6))
(1)  Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order.
(2)  The list of documents—
(a)  must be divided into two parts—
(i)  Part 1 relating to documents in the possession of party B, and
(ii)  Part 2 relating to documents that are not, but that within the last 6 months prior to the commencement of the proceedings have been, in the possession of party B, and
(b)  must include a brief description (by reference to nature and date or period) of each document or group of documents and, in the case of a group, the number of documents in that group, and
(c)  must specify, against the description of each document or group in Part 2 of the list of documents, the person (if any) who party B believes to be in possession of the document or group of documents, and
(d)  must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise.
(3)  Party B must comply with the requirements of subrule (1)—
(a)  within 28 days after an order for discovery is made, or
(b)  within such other period (whether more or less than 28 days) as the order may specify.
21.4   Affidavit and certificate supporting list of documents
(cf SCR Part 23, rule 3(5), (6) and (7); DCR Part 22, rule 3(5), (6) and (7))
(1)  The list of documents must be accompanied by—
(a)  a supporting affidavit, and
(b)  if party B has a solicitor, by a solicitor’s certificate of advice.
Note.
 See rule 35.3 as to who may make such an affidavit.
(2)  The affidavit referred to in subrule (1)(a) must state that the deponent—
(a)  has made reasonable inquiries as to the documents referred to in the order, and
(b)  believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents), and
(c)  believes that the documents in Part 1 of the list of documents are within the possession of party B, and
(d)  believes that the documents in Part 2 of the list of documents are within the possession of the persons (if any) respectively specified in that Part, and
(e)  as to any document in Part 2 of the list of documents in respect of which no such person is specified, has no belief as to whose possession the document is in,
and must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege.
(3)  The solicitor’s certificate of advice referred to in subrule (1)(b) must state that the solicitor—
(a)  has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised), and
(b)  is not aware of any documents within any of the classes specified in the order (other than excluded documents) that are, or that within the last 6 months before the commencement of the proceedings have been, in the possession of party B (other than those referred to in Part 1 or 2 of the list of documents).
21.5   Documents to be made available
(cf SCR Part 23, rule 3(9) and (10); DCR Part 22, rule 3(9) and (10))
(1)  Subject to the requirements of any Act or law, Party B must ensure that the documents described in Part 1 of the list of documents (other than privileged documents)—
(a)  are physically kept and arranged in a way that makes the documents readily accessible and capable of convenient inspection by party A, and
(b)  are identified in a way that enables particular documents to be readily retrieved,
from the time the list of documents is served on party A until the time the trial of the proceedings is completed.
(2)  Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A—
(a)  produce for party A’s inspection the documents described in Part 1 of the list of documents (other than privileged documents), and
(b)  make available to party A a person who is able to, and does on party A’s request, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents, and
(c)  provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being photocopied, and
(d)  provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied, subject to—
(i)  party A’s solicitor undertaking to pay the reasonable costs of providing those photocopies or facilities, or
(ii)  if party A has no solicitor, party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of providing those photocopies or facilities.
21.6   Subsequently found documents to be made available
(cf SCR Part 23, rule 3(8); DCR Part 22, rule 3(8))
If at any time after party B’s affidavit is made, and before the end of the hearing, party B becomes aware—
(a)  that any document within the class or classes specified in the relevant order for discovery (not being an excluded document) but not included in Part 1 of the list of documents is within, or has come into, party B’s possession, or
(b)  that any document included in Part 1 of the list of documents which was claimed to be a privileged document was not, or has ceased to be, a privileged document,
party B must forthwith give written notice to party A of that fact, and comply with rule 21.5 in respect of the document, as if the document had been included in Part 1 of the list of documents and the list had been served on the date of the giving of the notice.
21.7   Discovered documents not to be disclosed
(cf SCR Part 23, rule 3(11) and (12); DCR Part 22, rule 3(11) and (12))
(1)  No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court.
(2)  Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.
21.8   Personal injury claims
(cf SCR Part 23, rule 5; DCR Part 22, rule 5)
In any proceedings on a common law claim—
(a)  for damages arising out of the death of, or bodily injury to, any person, or
(b)  for contribution in respect of damages so arising,
an order for discovery may not be made in relation to any document unless the court, for special reasons, orders otherwise.
Division 2 Notice to produce before hearing
21.9   Definitions
(1)  In this Division—
notice to produce means a notice to produce referred to in rule 21.10.
party A means a party to whom another party is producing, or being asked to produce, documents or things for inspection.
party B means a party who is producing, or being asked to produce, documents or things for inspection.
(2)  For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence.
21.10   Notice to produce for inspection by parties
(cf SCR Part 23, rule 2(1); DCR Part 22, rule 2(1), (1A) and (2))
(1)  Party A may, by notice served on party B, require party B to produce for inspection by party A—
(a)  any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and
(b)  any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.
(2)  A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
21.11   Production under notice to produce
(cf SCR Part 23, rule 2(3) and (4); DCR Part 22, rule 2(3) and (4))
(1)  Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce—
(a)  produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and
(b)  serve on party A, in respect of any document that is not produced, a notice stating—
(i)  that the document is a privileged document, or
(ii)  that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or
(iii)  that party B has no knowledge, information or belief as to the existence or whereabouts of the document.
(2)  For the purposes of subrule (1)—
(a)  unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and
(b)  unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time.
21.12   Personal injury claims
(cf SCR Part 23, rule 5, Part 24, rule 1(3); DCR Part 22, rule 5)
In any proceedings on a common law claim—
(a)  for damages arising out of the death of, or bodily injury to, any person, or
(b)  for contribution in respect of damages so arising,
a party is not required to comply with a notice to produce in relation to a document or thing that has not been referred to in any originating process, pleading, affidavit or witness statement filed or served by that party unless the court, for special reasons, orders otherwise.
21.13   Costs and expenses of compliance
(cf rule 33.11)
(1)  The court may order party A to pay the amount of any reasonable loss or expense incurred by party B in complying with a notice to produce.
(2)  If an order is made under subrule (1), the court must fix the amount or direct that it be fixed in accordance with the court’s usual procedure in relation to costs.