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NSW · Litigation

Resolving a NSW discovery dispute

Discovery disputes typically arise when one party believes the other has under-disclosed documents or made improper privilege claims. Courts encourage narrow, targeted discovery and expect parties to resolve disputes without motions where possible.

In short

This is an 8-step workflow for resolving a NSW discovery dispute under the Uniform Civil Procedure Rules 2005 (NSW) Part 21, covering inadequate lists, privilege challenges, and further discovery applications.

Time: 10-25 hours depending on the volume of documents and the nature of the dispute.
Audience: NSW litigation lawyers faced with an inadequate list of documents or a contested claim for privilege.
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Prerequisites

Before you start

  • Pleadings closed
  • Discovery order or agreed categories in place
  • Opposing list of documents served
  • Client instructions on the specific issues in dispute
8 steps

The workflow

1

Analyse the list of documents

Analyse the opposing list by category, identify gaps, and note any categories where no documents have been produced that would reasonably be expected.

Tools: Quillio
Uniform Civil Procedure Rules 2005 (NSW) Part 21
2

Test privilege claims

Test the basis for legal professional privilege and any other privilege claims. Consider requesting a narrative or schedule of privilege.

Tools: Quillio
Evidence Act 1995 (NSW) ss 118, 119
3

Issue a detailed letter of complaint

Issue a detailed letter of complaint particularising the alleged deficiencies, requesting further discovery, and setting a deadline for voluntary compliance.

Tools: Quillio
4

Seek to resolve at directions

Raise the issue at the next directions hearing, seeking targeted orders for further discovery or production of privilege narratives.

5

Draft motion for further discovery

Where voluntary resolution fails, draft a notice of motion for further and better discovery supported by a narrow, fact-based affidavit.

Tools: Quillio
Uniform Civil Procedure Rules 2005 (NSW) r 21.2
6

Address Grant v Downs principles

On privilege disputes, address the dominant purpose test and any waiver by reference to correspondence conduct or voluntary disclosure.

Tools: Quillio
Grant v Downs (1976) 135 CLR 674
7

Prepare inspection protocols

Prepare inspection protocols (hardcopy or electronic) and coordinate with the opposing side on secure access or limited inspection of sensitive material.

8

Finalise and update case plan

Finalise the updated disclosure, update the case plan, and consider whether any late discovery triggers amendment of pleadings or particulars.

Outcome

What you will have at the end

A resolved discovery dispute, either by agreed further disclosure or court-ordered further discovery, with appropriately tested privilege claims.

Common issues

  • Broad, scattergun complaint letters rather than targeted requests
  • Failing to address the dominant purpose test on privilege
  • Over-discovery that creates costs but little probative value
  • Not updating the case plan after further discovery
  • Inadequate evidence of the category of missing documents
Use with Quillio

Run this workflow on a real matter

Quillio drafts complaint letters, privilege narratives, and motions for further discovery, mapping the Evidence Act and UCPR to the disputed categories. See /practice-areas/litigation-lawyers or start a free trial.

This workflow is a general guide for NSW. Federal Court discovery is managed differently under the FCR.

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Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.

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