Discovery is a category of procedural devices employed by a party to a civil or criminal action, prior to trial, to require the adverse party to disclose information that is essential for the preparation of the requesting party’s case and which the other party alone knows or possesses. It is a device used to narrow the issues in a law suit or obtain evidence not readily accessible to the applicant for use at trial and/or ascertain the existence of information that may be introduced as evidence at trial provided it is not protected by privilege. In the case of Karuhanga & Anor Vs Attorney General & 2 Ors Misc. Cause No. 0060 Of 2015,  UGHCCD 39 (28 May 2015) it was stated that discovery is contingent upon a party’s reasonable belief that he or she has a good cause of action or defence.
In light of the above, a party seeking for a production of documents from the other party must be before the Court to which the application is made and the suit must have pending issues for determination by that court. The document sought must be documents relevant to the determination of the pending suit before Court. This position is born out in the Law under the provisions of Order 12 rule 12 (1) of the Civil Procedure Rules and Order 10 rule 14 of the Civil Procedure Rules.
It is also trite law that court will deny discovery if the party is using discovery as a fishing expedition to ascertain information for the purpose of starting an action or developing a defence. A court is responsible for protecting against the unreasonable investigation into a party’s affairs and must deny discovery if it is intended to annoy, embarrass, oppress or injure the parties or the witnesses who will be subjected to it. A court will stop this discovery when used in bad faith and if the information to be produced is not protected by privilege.
Therefore, it is understood that this procedure is provided to compel the other party to produce documents on which they are relying on, other than the evidence. When such particulars regarding the case are asked through questions, then they are termed as interrogatories. The procedure for discovery and production before court is by Chamber Summons under Section 98 of the Civil Procedure Act, Rule 9 of the Judicature (Judicial Review) Rules 2009 and Order 10 rules 12, 14 and 24 of the Civil Procedure Rules.
No information contained in this alert should be construed as legal advice from Centre for Public Interest Law or the individual authors, nor is it intended to be a substitute for legal counsel on any subject matter.
For additional information in relation to this alert, please contact the following:
Gad A. Kisaalu
Legal Officer, Litigation & Advocacy.