Discovery Reform Under the Three‑Track Process: The Up‑Front Evidence Model
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Introduction
The proposal reshapes discovery to align with the up-front evidence model and the three new procedural tracks: Applications, Summary matters, and Trials. The aim is to cut delay and cost, reduce procedural fights, and make hearings happen sooner—while still ensuring each side knows the case to meet.
Emphasis on the Up‑Front Evidence Model
This model requires parties to exchange the core of their cases early: sworn witness statements, the documents they actually intend to rely on (called “Reliance Documents”), and expert schedules (and reports, where applicable). This model allows for a more pragmatic discovery model to complement these procedures more efficiently, with oral examinations for discovery either being replaced or tightly focused, depending on the track.
Overview of the Three‑Track Process Model
Application Track matters (e.g. current statutorily permitted application matters) continue to use a largely paper‑driven, directions‑based process that culminates in a “Summary Hearing.”
Summary Track matters (e.g., most claims under $500,000, and other simplified statutory proceedings such as mortgage enforcement or liquidated damages) also culminate in a Summary Hearing under a Paper Record+ process, with out‑of‑court cross‑examinations.
Trial Track matters (everything else) culminate in a conventional trial but with the enhanced up‑front disclosure and more targeted “focused examinations” instead of broad discoveries.
Discovery in Application Track Cases
Context: Application proceedings remain streamlined and tailored case‑by‑case at an early Directions Conference.
Changes:
Claim‑based disclosure at pleading: produce non‑public documents referred to in the pleading; provide links or copies for publicly available documents.
Primary disclosure as directed: serve Reliance Documents, sworn witness statements (if relying on them), and expert reports as ordered.
Supplementary disclosure: after primary disclosure, parties may cross‑examine on witness statements and expert reports and seek further documents, as is presently done in application practice.
The new model is largely aligned with current application practice and standardizes timing and terminology.
Discovery in Summary Track Cases
Context: For proportionate, lower‑value or fact‑straightforward cases that will be decided at a Summary Hearing.
Changes:
Claim‑based disclosure at pleading, as above.
Primary disclosure: exchange Reliance Documents, sworn witness statements for all witnesses you intend to rely on, and expert reports.
Supplementary disclosure: parties may make targeted, focused, specific document requests (using a standard Discovery Request Chart) where the documents are relevant, proportionate, and within the other party’s possession, control, or power.
Out‑of‑court cross‑examinations on witness statements and expert reports (subject to Directions Conference directions).
Disclosure in Trial Track Cases
Context: For higher‑value or more complex cases that proceed to a conventional trial, but with tighter, earlier evidence exchange.
Changes:
Claim‑based disclosure at pleading, as above.
Primary disclosure: exchange of Reliance Documents, sworn witness statements for all party witnesses, will-say statements of non-party witnesses, and schedules for expert reports and timetables for focused examinations.
Supplementary disclosure: parties may make targeted, focused, specific document requests (using a standard Discovery Request Chart) where the documents are relevant, proportionate, and within the other party’s possession, control, or power.
Focused examinations: targeted oral examinations (normally capped at 90 minutes per side, with added allocations where more parties are involved), scheduled within the set timetable. All answers to undertakings due within 30 days of examination. Written interrogatories are an alternative, capped at 50 single‑issue questions.
Reply witness statements: permitted to be delivered after focused examinations to complete the evidentiary picture but with no supplementary round of examinations contemplated.
Minimum Standard of Document Production
Context: To reduce friction and improve usability of productions across all tracks.
Changes:
Standardized document numbering/identification by party.
PDFs as the default with bookmarking; native format available on request (emails preferentially in .pst).
Production indices/spreadsheets with standard metadata fields.
Original hard-copy records available on request; Reliance Documents delivered electronically at no cost.
Confidentiality issues addressed by conference or protective order; non‑confidential materials should still flow pending resolution.
Content of Witness Statements
Context: To ensure clear, admissible, and efficient witness evidence.
Changes:
In the witness’s own words (recognizing some counsel involvement) and sworn or affirmed.
Only admissible evidence; no argument, commentary, or lengthy document summaries.
Footnote references to Reliance Documents (not attached as exhibits) with authenticity certification for all Reliance Documents.
Party witness statements must include a list of persons reasonably expected to have knowledge of live issues unless ordered otherwise.
Statements subject to the ordinary deemed undertaking rule until filed.
Disputes Concerning the Discovery Process
Context: To curb motion culture and resolve discovery fights quickly and proportionately.
Changes:
Parties will have two options to resolve refusal or production disputes. They can seek court-determination in writing using streamlined motion process, or they can ask the court to draw an adverse inference from the refusal.
Discovery disputes are tracked using a standardized Discovery Dispute Chart, with tight prescribed timelines and per‑issue cost consequences to deter over‑reaching.
Third Party Records
Context: Dealing with relevant/material documents in the possession of third parties.
Changes:
No real change to current third party record regime under Rule 30.10 , with case specific adjustments certain motions elsewhere in the proposal (e.g. Wagg motions).
Overall Recommendations
Redesign the current discovery regime to follow the up‑front evidence model across all tracks.
Application Track: claim‑based, primary, and supplemental disclosure as ordered, aligned with current application practice.
Summary Track: claim‑based, primary, and supplemental disclosure, with Reliance Documents, expert reports, sworn witness statements for all witnesses, and out‑of‑court cross‑examinations before a Summary Hearing (Paper Record+).
Trial Track: claim‑based, primary, and supplemental disclosure, with Reliance Documents, sworn party witness statements, will‑say statements for non‑party witnesses, expert and focused‑exam schedules, focused discovery examinations, and reply witness statements.
Adopt a minimum production standard and clear witness‑statement guidelines.
Allow parties to choose between a streamlined written motion determination of discovery disputes or seeking adverse inferences at the dispositive hearing.
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disclaimer
This article shares general information and insights. It is not legal advice, and reading it does not create a solicitor–client relationship.
