Litigation Ii. Disclosure Of Records

Front 1

Some of this information will be obtained by _____ known as disclosure of information. Some of this information will be acquired by _____through a question-and-answer process known as _____.

Back 1

viewing and photocopying the other parties’ relevant records through a process

verbally questioning the other parties to the lawsuit

Questioning.

Front 2

The disclosure process has two components: _________, and ________.

Back 2

obtaining access to the other party’s records that relate to the lawsuit

orally questioning the other parties to the lawsuit

Front 3

Information about the lawsuit can be obtained by disclosure of the other parties’ records. This refers to the process of obtaining access to the other parties’ relevant records, regardless of whether ______.

Back 3

those records are in the possession of the other parties or someone else.

Front 4

The purposes of record disclosure are similar to those of Questioning (which will be discussed in a later module). Record disclosure lets the lawyer become _______. This helps the lawyer to ______. This process also helps to ________ because it allows the lawyer to assess the strengths and weaknesses of both his or her own case and the other side’s case, as revealed by their records.

Back 4

The purposes of record disclosure are similar to those of Questioning (which will be discussed in a later module). Record disclosure lets the lawyer become familiar with the other side’s records. This helps the lawyer to prepare for trial knowing what the other side’s case will be. This process also helps to promote settlement because it allows the lawyer to assess the strengths and weaknesses of both his or her own case and the other side’s case, as revealed by their records.

Front 5

The Alberta Rules of Court state that the Plaintiff must automatically file and serve an Affidavit of Records on all other parties within _____. The Defendant then has _____to file and serve their affidavit of records. In some cases, the court may allow a late filing of an Affidavit of Records, such as in a _______. As well, the rules provide that once a party has prepared, filed, and served an Affidavit of Records, the party has an ongoing obligation to continue to disclose relevant records that it might acquire in the future.

Back 5

three months of service of the Statement of Claim

two months

Front 6

The Rules give all parties the right to demand to ______. They also give the party the right to _____ of that record.

Back 6

inspect any record referred to in another party’s pleadings, particulars, or Affidavits.

take copies

Front 7

The Affidavit of Records must be in Form _____ and list all ______. “Record” is defined as including the physical representation or record of any information, data, or other thing that is or is capable of being represented or reproduced visually and/or by sound. A record is relevant if it significantly helps determine one or more of the issues raised in the pleadings, or if it could ascertain evidence that could reasonably be expected to significantly help to determine one or more of the issues raised in the pleadings. In other words, if ______, it is relevant and material.

Back 7

relevant and material records

26

the record can help to prove or disprove an issue in dispute

Front 8

In addition to listing all relevant and material records, the Rules provide that the Affidavit of Records must also show: 5

Back 8

4. That the party has not and has never had any other relevant and material records;

5.When the non-objectionable records may be inspected (as long as this is no later than 10 days after the Affidavit was served), and where the records may be inspected. The party inspecting the records is allowed to take copies of those records.

Front 9

A party is not usually entitled to conduct a questioning until

Back 9

that party has served an Affidavit of Records (Rule 5.20);

Front 10

 A party who does not comply with the rules will _______equal to at least twice item 3(1) in Division 2 of Schedule C, irrespective of the final outcome of the proceedings (Rule 5.12(1));

Back 10

pay a penalty in costs to the opposite party

Front 11

The court can _____as a means of punishing a party that does not comply with the rules (Rule 3.68(4)(b)); and

Back 11

strike out pleadings

Front 12

If a party omits a record in his or her Affidavit of Records, ______, unless the court believes _______(Rule 5.16).

Back 12

the party cannot later use that omitted record in evidence

there was a valid reason for its omission in the Affidavit of Records

Front 13

Of course, there are some restrictions on what records are accessible to a party, even if those records are relevant to the lawsuit. In particular, records that ______, such as the ______, need not be provided to the other party, although the ______ to the other party.

Back 13

are subject to solicitor-client privilege

lawyer’s notes on the case

existence of these privileged documents must still be disclosed

Front 14

To begin the process of record disclosure, the legal assistant and the lawyer will work together to prepare the list of the party’s relevant records. This list is set out in a document currently known as the Affidavit of Records. This Affidavit does not actually contain the records; it just _____. The Affidavit of Records has a notice at the end that tells the party requesting the records _____. It is up to the _____ to view the records at the place and time set out in the document. It is permissible to make ______.

Back 14

lists and briefly describes them

when and where these records will be available for inspection

party requesting the records

photocopies of the records.

Front 15

The legal assistant and lawyer will divide these relevant records into three categories:

Back 15

1. Records the lawyer does not object to producing (in other words, records which the other party has the right to see even if those records are harmful to the party producing them);

2. Records the lawyer does object to producing. Usually this objection arises because the records are privileged: they relate to communications between the lawyer and the client, or between the lawyer and other people as part of preparing and carrying on the lawsuit; and

3. Records that the lawyer or the client had but no longer has, such as records which have become lost, the originals of letters that were mailed, etc.

Front 16

There is an ongoing obligation on the other party to continue to disclose relevant records, even after ______. The other party may need to prepare, file, and serve ______ from time to time as the lawsuit progresses and as that party obtains more relevant records which must be disclosed.

Back 16

the Affidavit of Records has been filed and served

Subsequent Disclosure of Records

Front 17

Record

Back 17

Physical representation of any information, data, or any other thing capable of being represented or reproduced visually and/or by sound

Front 18

What if the record is with a third party?

Back 18

Either party can apply for an application for an order compelling production of record directly from third party