by Nur Rafiuddin Maswari
Published April 3, 2019
Evidence is crucial to lawsuits. Success often depends entirely on the sufficiency of information one has.
In an ideal situation, a litigant is equipped with all sufficient information to institute his lawsuit. Unfortunately, a litigant may sometimes be short of evidence - which is not an entirely uncommon scenario.
When that happens, a litigant may try to apply for an order that information relevant to his case be disclosed before he commences his suit. That order falls under a process generally known as a ‘pre-action discovery’.
The term ‘discovery’ then refers to an aspect of civil procedure, where the court compels/orders a relevant party to disclose facts or documents. It is sometimes a necessary tool, especially when material evidence in the possession, custody or power of another person is being unreasonably withheld.
‘Pre-action discovery’ refers to a discovery procedure before lawsuits are instituted. The procedure allows him to preliminarily determine whether he has a good cause of action, i.e. a reason to sue at all. With this, he may ensure that he has a good case to bring against the opposing party/parties. If the answer is in the negative, then he can instead avoid an unproductive or doomed-to-fail-lawsuit, which should be avoided always.
Prior to obtaining an order for pre-action discovery, an applicant must generally fulfil these requirements, i.e. he must:
state the material facts of the intended claim;
state whether the person against whom pre-action discovery is made is likely to be a party in the intended claim;
specify or describe the documents sought in the intended claim;
demonstrate how the documents are relevant in the intended claim;
identify the person who is likely to have or had the documents in his possession, custody or power.
It is not uncommon for opposing litigants to resist attempts at pre-action discovery. Common reasons include confidentiality of information (or breach thereof), or claims of abuse of process or evidence-gathering expeditions. As to these, and briefly:
The confidential status of information does not as a rule hinder information from pre-action disclosure. Disclosure is generally hindered only if it infringes upon/impairs statutory duties, or prejudices others.
Pre-action discovery attempts with the ulterior motive to gather additional evidence - also known as ‘fishing for evidence’ - contravenes the intent of the pre-action process. They may be opposed or stopped. (‘Fishing for evidence’ however is a phrase somewhat open to interpretation; what it means can vary from case to case.)
If a litigant has sufficient information to institute a lawsuit, pre-action discovery will be refused. His weak evidence is irrelevant; if he wishes to improve that, he could instead seek pre-trial discovery (not pre-action discovery). That however is a separate legal relief, and outside the scope of this article.