The Indian legal system, while robust, can present challenges for corporations navigating complex disputes. Lengthy proceedings, significant costs, and a sheer volume of documentation can hinder achieving favourable outcomes. To effectively address these challenges, litigants must possess an understanding of the procedural tools available and strategically leverage them to streamline the dispute resolution process.

One such powerful tool at a litigant's disposal is the ability to request discovery and production of documents. This process compels the opposing party to disclose relevant, yet undisclosed, documents critical to a case.

This article delves into the strategic use of discovery requests, their impact on legal proceedings, and how to both seek necessary disclosures and defend against overly broad demands.

What is Discovery and Production of Documents?

When a party wants access to information that the adversary party possesses but has not been disclosed, it can request discovery and production to the court. This request (if granted) compels the adversary party to disclose any documents they have under their control or possession. The rules governing discovery and production of documents are covered under Rule 12-14, Order XI of the Code of Civil Procedure, 1908 (the “Code”).

An application for discovery of documents has twofold objectives, namely:

a) To secure as far as possible that all material documents are disclosed; and 

b) To put an end to what might otherwise lead to a protracted enquiry as to the material documents actually in possession or under the control of the opposite party.

What documents are eligible for discovery and production?

The right to obtain discovery of an adversary's documents is a very wide one. An application for discovery and production may be made for documents in general or be limited to certain classes of documents. The documents in relation to which discovery can be sought are listed below. 

a) Documents have to be in the possession and power of the person against whom discovery and production is sought.

b) Documents sought are necessary at that stage of the suit.

c) Discovery and production is necessary for fairly disposing of the suit or for saving costs.

d) Documents sought are relevant for throwing light on the matter in controversy irrespective of their admissibility as evidence.

What are the objections/ defences to an application for discovery and production?

Indian courts have held that an application for discovery and production is not intended to enable a party to cause a roving enquiry to fish out information which may or may not be relevant for the disposal of the legal proceedings. Discovery requests can be resisted based on document categories/ circumstances listed below.

a) Documents sought are covered by legal or professional privilege.

b) Documents sought tend to incriminate the adverse party or expose it to forfeiture.

c) Documents sought are protected by public policy.

d) Documents sought are in the possession of the adverse party as an agent or a representative of another.

e) Documents sought disclose evidence of the adverse party's own case.

How to obtain the discovery and production of public documents?

An application for discovery and production of public documents which are in the custody and possession of a public servant shall be made to such public servant who is empowered to grant certified copies of such documents. However, if the public servant refuses to provide certified copies of the documents, the party seeking discovery can approach the court and request it to direct the public servant to provide discovery and production of documents in their possession.

What are the consequences of an order granting discovery and production?

The court’s power to grant discovery and production of documents is discretionary. Courts may exercise this discretion if they believe that the documents being sought are appropriate for such disclosure. When the court makes an order for discovery, the adverse party is bound to make an affidavit of documents. The affidavit shall provide all the documents which are or have been in their possession or power and are related to the matter in question.

As to the documents which are not, but have been in the adverse party’s possession or power in the past, the adverse party must state what has become of them and in whose possession they are, so that the applicant party may be enabled to get production from the person who has possession of the documents. After the documents are disclosed by the affidavit, the adverse party may be required to produce the documents for inspection.

What are the consequences for failure to comply with court’s order granting discovery and production?

If a party fails to comply with the court’s order of discovery, they may face penalties as specified in Rule 21, Order 11 of the Code. Courts have the discretion to dismiss a suit or strike out a defence for such a default. However, Indian courts have held that such discretion is to be only exercised when the default is wilful and only as a last resort. Courts have also observed that the consequence of an order being passed under Rule 21, Order 11 is highly penal in nature and ought to be used only in extreme cases.

Additionally, under the rules of evidence, if a party fails to produce documents, they cannot use the document as evidence without the consent of the other party or an order of the court and it is open to the court to draw adverse inference under Section 114(g) of the Indian Evidence Act, 1872. However, the Indian Evidence Act, 1872 does not envisage any penal consequences a for failure to produce documents.

Key Takeaways

The process of discovery and production of documents is a crucial procedural tool in litigation, designed to ensure a fair and efficient resolution of disputes. The wide-ranging eligibility criteria for documents, coupled with specified objections and defences, strike a balance between the right to information and the protection of legal privileges. Notably, the non-compliance with court orders may lead to penalties, though exercised cautiously. The rules of evidence allow adverse inferences for non-production, but no direct penal consequences are outlined. In essence, the process seeks to strike a delicate balance between information access and legal safeguards.

About the author: Lokesh Aidasani is a Senior Associate at BTG Advaya.

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