What do you do if there is a key document that can help prove your case, but it is in the possession of the opposing party, and you don’t have access to it? Clients often ask us how we can obtain documents from the other side. For example, a former employee might know about an email that will be helpful to their position, but it is on their former employer’s email servers, and the employee can no longer access it. How can you obtain a document that only the other side has access to?
Unfortunately, in most cases, there is no way to compel production of a document before litigation is commenced. Lawyers can ask the other side for documents as part of settlement discussions, but parties have no obligation to make such disclosure. However, once litigation has been commenced, there are several ways that a party can compel production of a document from the other side. The most common ways to do so are outlined below.
Requests to Inspect
A Request to Inspect is usually the earliest possible step for obtaining disclosure of documents. If one side refers to a specific document in their pleading (for example, a Statement of Claim or Statement of Defence), the other side can serve a Request to Inspect, which will require them to produce the document.
It is important to note that a Request to Inspect can only be used to compel production of a document that is specifically referred to in a party’s pleading or affidavit. It cannot be used to obtain evidence of an allegation or to obtain production of any further documents beyond what is mentioned in the pleading or affidavit.
Affidavits of Documents
As I wrote about previously, the discovery process includes “documentary discovery”, in which both sides must produce an affidavit of documents containing all relevant documents in that party’s power, possession or control. This occurs after the parties have completed their pleadings.
Each party must produce both documents that will help their case, and documents that could hurt their position. Therefore, if the opposing party complies with their discovery obligations, at this stage you should receive any relevant documents which you didn’t previously have access to. However, this is not always what happens, and therefore there are additional steps you can take to compel production of documents.
Motion for Further Productions
If one party has not produced all the relevant documents in their possession as part of their affidavit of documents, the other party may make a motion to the Court for an order requiring them to produce a “further and better” affidavit of documents. This can be necessary if there is no reasonable way to proceed with examinations for discovery without the production of those documents. In other cases, it is more appropriate to move forward with examinations for discovery, and to try to obtain the missing documents at a later stage.
Undertakings and Refusals
The discovery process also includes oral discovery, in which the parties attend examinations for discovery and are questioned under oath by the other side’s lawyer. As part of these examinations, parties can be asked to produce additional documents that were not previously disclosed.
If a party agrees to produce the document, that becomes an undertaking that must be answered within 60 days. If the party refuses to produce the document, that becomes a refusal. The other party may then bring a motion to the Court requiring the other side to answer any outstanding undertakings and refusals. In general, the Court will order a party to produce a document if either a) they gave an undertaking to produce that document, or b) they refused to produce that document, but the Court determines that the document is relevant.
As set out above, there are many ways in which a party can compel the other side to produce documents. The best way to do so will depend on the specific circumstances of the case, as well as the delays and costs associated with each step.
Whether you are an employee or an employer that is a party to litigation, we can help you determine the best steps to take and the appropriate way to protect your interests. If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.