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Recent BC Court Form Amendments: Disclosure in Litigation Confidential As Between Parties

Virginia Richards

Written by: Virginia Richards (View All Posts • View Bio) Published: April 21, 2016

Categorized: British Columbia, Legislation Analysis, Procedure.
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On February 18, 2016, the British Columbia Supreme Court announced a January 28, 2016 Order in Counsel making amendments to the Supreme Court Family Rules effective July 1, 2016.  Notable among the amendments are changes to Form 20 and Form 21, which are the List of Documents and Appointment to Examine for Discovery, respectively.

The List of Documents is a form that tells the other party which relevant documents are in the possession and control of the listing party.  The Appointment to Examine for Discovery is the form that sets the time and place for the other party to be examined under oath in advance of the trial.  Lists of Documents and Examinations for Discovery facilitate and require broad and comprehensive disclosure, and typical family litigation will result in the parties exchanging very sensitive information and documents.  The recent amendments call for including in the forms the implied undertaking of confidentiality over documents exchanged in family litigation:

Implied undertaking to the court

Documents produced are not to be used by the other party(ies) except for the purposes of this litigation unless and until the scope of the undertaking is varied by a court order or other judicial order, consent or statutory override or a situation of immediate and serious danger emerges. This implied undertaking continues despite settlement or completion of the litigation.”

This implied undertaking is not at all a new concept.  You may not use documents or information obtained in litigation for any other purpose except the litigation, unless you fall within a few narrow exceptions.  Family law litigants have been bound by this rule for years.  However lay litigants are increasingly common, and most non-lawyers would not have reason to be aware of the implied undertaking until now.   The amendments make it clear on the face of the documents: disclosure obtained in family cases is for use in the litigation only.

Virginia K. Richards

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