What is Discovery?
After you commence a Supreme Court action for your ICBC claim, you have certain legal obligations to disclose all relevant documents (with some exceptions) in your possession or control, and to submit to an examination by the ICBC lawyer (oral questioning), if necessary. These obligations extend to all parties to the litigation.
What is the Purpose of Discovery Procedures?
The purpose of these discovery procedures is to ensure that the litigation process is open and fair, that parties do not “hide” relevant documents or information that may prove harmful to their case, or that parties cannot engage in “trial by ambush” by not disclosing information until the eve of trial which may damage the opponent’s case or how they would conduct the litigation.
What Documents are they Referring to?
“Documents” is given a broad meaning in the context of litigation and can include computer files, photographs, film, sound recordings or any other information recorded or stored by means of any device. Typically, in an ICBC lawsuit, the kinds of documents that are disclosed include medical records, employment or academic records, tax returns, WorkSafe BC records, and police accident investigation records. Also, ICBC may try to obtain information stored on a plaintiff’s personal computer or social networking websites, so if you have an ICBC claim, you need to exercise caution.
The rules require that documents in the “possession or control” of the party need to be disclosed, so records that a plaintiff does not possess, but could obtain from a third party (say, records from the family doctor) usually must be produced. The court can order the third party to produce the relevant records if they are not responding to the lawyer’s requests.
A party must disclose any documents which he/she intends to rely on at trial, or that could be used to “prove or disprove a material fact,” whether the documents are helpful or hurtful to the case. In other words, the parties are not free to pick and choose what they disclose. What is a “material fact” is sometimes a matter of dispute, but courts tend to lean towards ordering disclosure unless there are compelling reasons against it. Frequently, records are produced but irrelevant entries contained in the records can be excised before being sent to the other side. A good example is doctor records, which may contain entries that are both relevant and irrelevant to the injury claim. Likewise, certain documents may not have to be disclosed because they are “privileged” from production. This includes: communications with a lawyer; documents that have been generated specifically for the lawsuit, such as medical opinion reports requested by the lawyer for the case (as opposed to records kept by the doctor). If the report is not helpful, then usually it does not have to be produced to the opposing side.
ICBC & Document Disclosure
Finally, if you are concerned about producing records because you don’t want them disclosed to others not involved in the litigation, you need not worry. There is an implied undertaking of confidentiality which means that ICBC cannot use or disclose documentary or oral information obtained except for the sole purpose of that litigation. So, for example, ICBC is not allowed to report information about you to Revenue Canada that was acquired as part of your case. However, anything relevant may be disclosed at trial, so it can be helpful to retain a skilled lawyer to negotiate the best settlement for your claim without going to trial.