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Discovery is the disclosure by the parties to an action, to all other parties to the action, of all documents, relevant to the issues in the action, which are or have been in the possession, custody or power of the disclosing party. Disclosure is made by serving a List of Documents on each of the other parties.
The Rules of Court define document as including, in addition to a document in writing:
- any book, map, plan, graph or drawing;
- any photograph;
- any label, marking or other writing which identifies or describes anything of which it forms part, or to which it is attached by any means whatever;
- any disc, tape, soundtrack, computer or device whether of the same kind or any kind whatsoever in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;
- any film (including a microfilm) negative tape disc or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
- anything whatsoever on which is marked any words, figures, letters or symbols which are capable of carrying a definite meaning to persons conversant with them.
A document is in your custody if you hold it, even though you do not have the legal right to sole possession of it, e.g., where you hold it as an agent for another person or where you hold it jointly with another person.
A document is in your power if you have a legal right to obtain possession of it although you do not now have actual possession of it. It is not within your power if you have no legal right to obtain its production, even if the holder would voluntarily produce it to you if you asked him. A document held by a parent company is not necessarily in the power of its subsidiary.
Every document which may throw light on the case, either directly or indirectly, is discoverable.
As to documents which are no longer in your possession, custody or power, you must state, in relation to each of those documents, when it was last in your possession, custody or power and how it came to leave your possession, custody or power. This obligation extends to documents which may never have been in your possession or custody but have been within your power. It is therefore very important to make full inquiries from all present and former agents, partners, associates, advisers and the like, about what relevant documents they have or may have had in their possession, custody or power, otherwise you may be liable for the consequences of having made inadequate discovery.
Where a discoverable document has been destroyed, but you have a microfiche copy of it, that microfiche must be discovered.
You are under a continuing obligation, throughout the proceedings, to give further discovery as soon as further discoverable documents come into your possession, custody or power and you must give me the necessary instructions as soon as this occurs.
If you no longer have a copy of a document which was, but is no longer, in your possession or power and you, or some other person acting as your agent, were the author of that document and it is possible to obtain a copy of that document from some other person, you must, no later than the date of filing of your list of documents, take all proper steps to obtain a copy of that document.