The Importance of Proper Disclosure and the Consequences of Failing to do so

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Written By: Salvatore Shaw and Brandon Pedersen, Student-at-Law

Documentary disclosure

Rule 30 of the Rules of Civil Procedure sets out the basic obligation on a party to disclose all documents relevant to a matter in issue in the action that are or have been in the party’s possession, control or power.

In a typical civil lawsuit, lawyers will exchange evidence between each other by gathering all of the evidence in their client’s possession, making a list of all the items, and then organizing the evidence into what is called an Affidavit of Documents. The documents therein are organized into different categories: Schedule A contains documents in the possession, control or power that the client does not object to producing for inspection; Schedule B contains documents that are or were in the client’s possession, control or power that the client objects to producing on the grounds of privilege; and Schedule C contains documents that were, but no longer are, in the client’s possession, control or power. Each schedule will list the documents and provide a brief description of each.

There is a continuing obligation on each party to disclose relevant, non-privileged documents that subsequently come into the client’s possession, control or power, and to correct any inaccuracies by serving a supplementary affidavit of documents.

What is the purpose of documentary disclosure?

Documentary disclosure encourages parties to be open and honest throughout the litigation. This allows for outcomes and results that are based on the merits, rather than cloak-and-dagger-like tactics. It also prevents surprises from arising at trial and is a particularly useful tool to keep the litigation moving forward.

What happens when a party fails to disclose?

Once the parties exchange their respective affidavit of documents, the lawyer and the client will review the opposing parties for completeness. If the opposing party’s affidavit of documents omits relevant documents or information, there may be consequences.

Failing to disclose may cause further tension in the relationship between parties and lawyers, and indicates that one party may be trying to hide something essential to the dispute. This can ruin the relationship and damper settlement opportunities at mediation and continued negotiation throughout the lawsuit.

Additionally, failing to disclose at the onset will inevitably prolong the lawsuit. If and when a party recognizes that a relevant document has been omitted, they will have to either ask opposing counsel to remedy the deficiency or if necessary, consider bringing a motion for a further and better affidavit of documents under r. 30.06.

If a party decides that a r. 30.06 motion is required, they must demonstrate that a relevant document(s) exists but has not been listed by the other party. However, a party must be careful in deciding whether to bring a r. 30.06 motion. The court will not allow a party to attempt a fishing expedition, therefore, the moving party must have some evidentiary basis for their position. Motions based on inadequate material or mistaken assumptions grounded in speculation can lead to an unnecessary waste of time and money.

Lastly, there may be significant cost consequences for a party who fails to disclose or fails to displace the burden on a r. 30.06 motion. Like every step of litigation, parties must think critically about their next move and aim to achieve a strong, working relationship with the opposition in order to foster productive settlement negotiations and ensure the litigation moves as smoothly as possible.

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