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Section 16:
Discovery
16.1
Modifying the basic discovery obligations
Proposal 25
Automatic discovery should be retained, but the Peruvian Guano test of relevance should no
longer be the primary measure of parties' discovery obligations. Subject to the parties'
agreeing otherwise, a primary test restricted to directly relevant documents, namely, those
relied on by the parties themselves, those adversely affecting each party's case and those
supporting the opponents' case, should be adopted instead.
Proposal 26
In making disclosure, the parties should be free to reach agreement as to the scope and
manner of making discovery. Where no agreement is reached, they should be obliged to
disclose only those documents required under the primary test, ascertainable after a
reasonable search, the reasonableness of such search being related to the number of
documents involved, the nature and complexity of the proceedings, how easily documents
may be retrieved and the significance of any document to be searched for.
discovery obligations based on the Peruvian Guano decision
ought to be replaced by
the narrower "standard discovery" obligations adopted by the CPR.
Notes
See Interim Report §§406-407.
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