Vasco de Oliveira Incorporated | Discovery – Who calls the shots
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Discovery – Who calls the shots

11 Feb Discovery – Who calls the shots

Introduction

Discovery, in terms of Rule 35 of the Uniform Rules of Court Act and Rule 23 of the Magistrate’s Court Act, is a procedure whereby a party to an action may ascertain what documents and tape recordings relating to the matter in issue is in the possession of the opponent. A litigant is entitled to have disclosed to him the items discovered and to inspect and make copies of them[1].

Generally, the process of discovery is as follows:

  1. A litigant (“the discoveree”) will invoke either Rule 35 or Rule 23 (depending on the court in which his action has been instituted) and will, by notice, call upon his opponent to make discovery of all documents and tape recordings relating to the matter in question which are or have at any time been in the possession or control of such opponent. Discovery is made on oath by way of an affidavit to which is attached a schedule of the documents and/or tape recordings;
  2. Within 20 days of receiving such notice, the party called upon to make discovery (“the discoveror”), shall deliver an affidavit specifying any documents or tape recordings in his possession. The party called upon to make discovery may object to the production and inspection of certain documents or tape recordings. For the purposes of this article, these exclusions are not relevant but should be borne in mind when litigating;
  3. Having perused the discovery affidavit, a litigant may then, by way of notice, call upon his opponent to make available for inspection any documents set out in the discovery affidavit.
  4. The party called upon to provide the documents for inspection will be required to provide his opponent with copies of the requested documents.

The purpose of this article is to ascertain whether any limitations may be placed upon the process of discovery and whether once discovered, the discoveror of the documents is entitled to exercise any control over the use of such documents by the discoveree. In particular, whether the discoveror may dictate to the discoveree who may view the documents.

Legal Principles

There are two conflicting views in respect of the notion of confidentiality within the context of discovery. These views were raised by the court in Crown Cork & Seal Co and Another v Rheem South Africa (Pty) Ltd and Others[2] (“Crown Cork”). The court established the two views as follows:

  1. Firstly, documentation may contain confidential information that the litigant would not want made public knowledge and therefore the discoveror’s proprietary rights should be protected and the documents should not be made susceptible to misuse. In order to ensure this, the court could impose limitations on the use of the documents once discovered; and
  2. Secondly, no limits should be placed on the process of discovery and the discoveree should be entitled to make full use of the discovered documents.

In dealing with the conflicting views, the court held as follows:

although the approach of a court will ordinarily be that there is full right of inspection and copying … Courts have a discretion to impose appropriate limits when satisfied that there is real danger that if this is not done an unlawful appropriation of property will be made possible merely because there is litigation in progress and because the litigants are entitled to see documents to which they would not otherwise have lawful access. But it is to be stressed that care must be taken not to place undue or unnecessary limits on a litigant’s right to a fair trial, of which the discovery procedures often form an important part.

Thus, the principle arising from Crown Cork is that it is within the court’s discretion, having regard to the particular facts of each case viewed together with the purpose of the discovery procedure, whether or not to impose limitations on the use of the documents by the discoveree.

The court in Unilever and another v Polagric (Pty) Ltd[3], found itself faced with a situation whereby it was called upon to impose limitations on the use of discovered documents, specifically in relation to which parties may have access to or view such documents. The court applied the Crown Cork principle and held as follows:

It is unwise, in my view, unless very special circumstances exist, to create a situation in which the legal advisers or experts of a party to opposed litigation may find themselves in possession of information which may be highly relevant to the litigation to the litigation but which they are precluded from communicating to their client. What are they to do with such information? How are they to obtain instructions in relation thereto? How are they to advise their client on the further conduct of the litigation or on whether it should be proceeded with at all? These, it seems to me are, are some of the questions which can arise and which, in this case, could potentially place the respondent’s legal advisers and experts in an invidious and even untenable position. Serious ethical questions could arise. The interests of the respondent could be prejudiced by the fact that it is unable to receive proper advice based on all the relevant facts.

Ultimately, the court in Unilever exercised its discretion and ordered that no limitations be imposed on discovery, specifically in relation to who may view the documents so discovered.

The aforesaid notwithstanding, a litigant should always bear in mind that there exists an implied undertaking of confidentiality in respect of discovered documents[4]. In essence, upon receipt of the discovered documents, the discoveree impliedly undertakes to the court that he will not use them or any information derived from them for a collateral or ulterior purpose. This undertaking is aimed at protecting the confidentiality of the discoveror’s documents. This undertaking would apply to not only the legal advisers of the discoveree but to any third parties who may view the documents for the purpose of assisting in the litigation

Conclusion

It is clear from the aforesaid, that should a court exercise its discretion and elect not to impose any limitations on the discovery process, the normal rule will apply i.e that full disclosure and inspection be granted. Therefore, once documents have been discovered in terms of the relevant Rule and absent any court imposed limitations, a discoveror will not be permitted to dictate what the discovoree may do with the disclosed documents or who he is entitled to show them to. However, the implied undertaking of confidentiality will, at all times, apply.

Should a party called upon to discover be of the view that limitations should be imposed upon his opponents right to full disclosure and inspection, he should approach a court with jurisdiction to have such limitations imposed – he may not unilaterally impose conditions upon his opponent absent a court order once he has discovered his documents.

[1] Herbstein and Van Winsen The Civil Practice of the Supreme Court of South Africa 4ed (1997)
[2] 1980 (3) SA 1093 (W) 1098 BE
[3] 2001 (2) SA 329 (C)
[4] Replication Technology Group and Others v Gallo Africa Limited. In re: Gallo Africa Limited v Replication Technology Group and Others 2009 (5) SA 531 (GSJ)

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