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Results: 4 Answers
Patents
7.
Discovery
7.1
Is discovery available during litigation?
 
India
Yes, discovery is available during litigation. The provisions relating to discovery are set out in Order XI – Discovery and Inspection of the Civil Code of Procedure, 1908 and Order XI – Disclosure, Discovery and Inspection of Documents in suits before the commercial division of a High or a Commercial Court of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

Any party to litigation may apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in its possession or power, relating to any matter in question therein.

On hearing such application, the court may either refuse or adjourn the same if it is satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order – either generally or limited to certain classes of documents – as it may, in its discretion, see fit. An order of discovery shall not be made by the court if it is of the opinion that it is not necessary either to dispose fairly of the suit or to save costs.

An objection against production of the document can be made by the other party in a fixed format and by affidavit. Additionally, at any time while the suit is pending, the court may order the production on oath of any document in possession of either party, relating to any question in the suit. Notice to produce documents is issued in a fixed format.

A general principle is that discovery cannot be used for fishing expeditions, so in practice discovery is seldom sought.

For more information about this answer please contact: Essenese Obhan from Obhan & Associates
7.2
What kinds of discovery are available?
 
India
Order XI of the Civil Procedure Code, 1908 recognises three types of discovery:

  • discovery by interrogatories;
  • application for discovery of documents; and
  • inspection of documents referred to in pleadings or affidavits.

Discovery by interrogatories: Any party to a suit with the leave of the court may deliver interrogatories to the opposite parties or any one or more of such parties. No party shall deliver more than one set of interrogatories to the same party without an order for that purpose from the court. Interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on oral cross-examination of a witness.

An objection to answering any interrogatory can be raised on any grounds, including the following:

  • It is scandalous or irrelevant;
  • It is not exhibited in good faith for the purpose of the suit;
  • The matters inquired into are not sufficiently material at that stage; or
  • It is privileged.

An application to set aside interrogatories can be made on the grounds that they have been exhibited unreasonably or vexatiously, and an application to strike out can be made on the grounds that they are prolix, oppressive, unnecessary or scandalous.

Application for discovery of documents: Any party may, without filing an affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in its possession or power, relating to any matter in question therein. After hearing the application, the court may either refuse or adjourn the same if it is satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order – either generally or limited to certain classes of documents – as it may, in its discretion, see fit. Discovery shall not be ordered if the court is of the opinion that it is not necessary either to dispose fairly of the suit or to save costs.

At any time while the suit is pending, the court may order any party to produce on oath any documents in its possession or power that relate to any matter in question in such suit as the court sees fit.

Inspection of documents referred to in pleadings or affidavits: Each party to a suit is entitled, at or before the settlement of issues, to give notice to any other party to permit it to take copies of documents thereof. Any party that does not comply with such notice shall not subsequently be at liberty to present any such document in evidence on its behalf in such suit, unless it satisfies the court that such document relates only to its own title, it being a defendant to the suit, or that it had some other cause or excuse which the court deems sufficient for non-compliance.

For more information about this answer please contact: Essenese Obhan from Obhan & Associates
7.3
Are there any limitations to the amount of discovery allowed?
 
India
The discovery sought must relate to the subject matter therein. The discovery sought should not be scandalous, irrelevant, unreasonable, vexatious or not bona fide, in the opinion of the court.

For more information about this answer please contact: Essenese Obhan from Obhan & Associates