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Discovery information sheet

Litigants often seek guidance in understanding their discovery (disclosure) obligations in the litigation process.

To download our information sheet on Discovery (Disclosure) of Documents in Litigation, please click here.

Discovery (also known as Disclosure in other jurisdictions)

In jurisdictions with a common law tradition, e.g. Singapore, England, Australia, the United States of America, it is a normal practice for parties to a litigation or arbitration to engage in a process known as "discovery" or "disclosure".

This process involves the disclosure and production of documents held or controlled by each of the parties to the litigation or arbitration that are relevant to the issues in dispute.

In giving "discovery", a party must disclose not only those of its documents that support its case, but also any documents that it has, that may undermine its case.

"Discovery" is ordinarily not a facet of litigation or arbitrations conducted in civil law jurisdictions (e.g. France, Germany, the Netherlands, Indonesia, Thailand).

Discovery obligations on the parties & their lawyers

In Singapore, a lawyer acting for a party in litigation has an obligation to the Court to inform his client of the responsibilities involved in the discovery process and to take the necessary steps to ensure that they are fulfilled i.e. the preservation of all documents that may be disclosed in the "discovery" process.

A Singapore lawyer has the responsibility of making a careful investigation with his client for relevant documents or supervising the client in the document collection process. If the client will not give him information that he is entitled to require, or if the client insists on swearing an affidavit (e.g. a discovery affidavit) which the lawyer knows to be imperfect, the lawyer's duty is to withdraw from the case.

A Singapore lawyer has a duty to take measures to ensure that the "discovery" process has been properly carried out by his client. He needs to go further than merely taking his client's word for it that all relevant documents have been disclosed.

Privilege

The contents of 'privileged' documents need not be disclosed to your opponent, in discovery. However, the existence of such documents must still be made known to your opponent.

You may claim 'privilege' over documents which contain communications with your lawyers and/or documents coming into existence for the purpose of your lawyers giving you legal advice or for the purpose of your receiving legal advice from your lawyers. In Singapore, legal advice given by in-house legal counsel to their companies' management or staff is covered by this privilege.

You may also claim privilege over any documents made for the sole or dominant purpose of a lawsuit. An example would be email communications passing between the staff and management of a company in relation to on-going litigation.

Once litigation is imminent or has started, it is a good practice to mark or stamp all documents that you seek to assert privilege over as being "PRIVILEGED", so that their contents will not be inadvertently disclosed to your opponent.

Privilege does not however cover documents that are merely 'confidential' in nature and which do not fall within the types of documents mentioned above. Such 'confidential' documents must still be disclosed to your opponent to the extent that they are relevant to the lawsuit and necessary for a fair trial e.g. medical records, customer records, client lists, proprietary manufacturing processes etc.

More information?

Should you require more information on Discovery or Privilege, please contact us by clicking here.

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