Civil District Court Rules getting discovery

mrjoneill

Anyone know the correct form to use for discovery of documents from another party not party to proceedings in the civil District Court. District court office unable to advice because they don't know

Pro Hoc Vice

All in the rules http://courts.ie/rules.nsf/DistrictRules?OpenView&Start=1&Count=30&Expand=3#3

mrjoneill

Its not or I cant find it!!!!!!!!!!!!!



No. 46A.1 is between plaintiff and defendant
http://courts.ie/rules.nsf/lookuppagelink/BEBB5FBCE9F959C5802576390032576F?opendocument&l=en


No. 46A.2 is between plaintiff and defendant also
http://courts.ie/rules.nsf/lookuppagelink/728FED1DA9F7D9DA80257639003273D2?opendocument&l=en


No. 46A.3 is between plaintiff and defendant also
http://courts.ie/rules.nsf/lookuppagelink/613503FAE812ADF8802576390032AA6C?opendocument&l=en


there is no mention of proscribed form for other party not being the defendant

Pro Hoc Vice

mrjoneill wrote: »

Its not or I cant find it!!!!!!!!!!!!!



No. 46A.1 is between plaintiff and defendant
http://courts.ie/rules.nsf/lookuppagelink/BEBB5FBCE9F959C5802576390032576F?opendocument&l=en


No. 46A.2 is between plaintiff and defendant also
http://courts.ie/rules.nsf/lookuppagelink/728FED1DA9F7D9DA80257639003273D2?opendocument&l=en


No. 46A.3 is between plaintiff and defendant also
http://courts.ie/rules.nsf/lookuppagelink/613503FAE812ADF8802576390032AA6C?opendocument&l=en


there is no mention of proscribed form for other party not being the defendant

The actual rule "Any party to civil proceedings may apply to the Court by notice of motion to be served not less than four clear days before the hearing thereof for an order directing any other party to the proceedings to make discovery on oath of the documents which are or have been in his or her possession, power or procurement relating to any matter in question therein. On the hearing of such application the Court may make such order as it shall think fit either generally or limited to certain classes of documents and with or without terms as to security for the costs of the discovery or other terms or the Court may refuse or adjourn the application if the Court feels that discovery is not necessary or is not necessary at that stage of the proceedings."

Just change the precedent to reflect what you want. Read the rule in full as there are certain steps to be taken before motion stage.

mrjoneill

I wish I could change document layout but the courts or the other party may object to the wrong form being used . What I understand is Oder 46A procedure is for an order directing any other party to the proceedings. I’m seeking discovery from a party not party to the proceedings.

Pro Hoc Vice

mrjoneill wrote: »

I wish I could change document layout but the courts or the other party may object to the wrong form being used . What I understand is Oder 46A procedure is for an order directing any other party to the proceedings. I’m seeking discovery from a party not party to the proceedings.

Not sure if one can do that in DC but could be wrong on that. Sorry did not read your OP properly.

mrjoneill

infosys wrote: »

Not sure if one can do that in DC but could be wrong on that. Sorry did not read your OP properly.

Ok no prob, its a confusing term and takes digesting to comprehend fully.




I believe it exist but is very rarely used

NoQuarter

If its not in the DC Rules you can use the higher courts rules. That's standard practice but be certain there is no DC rule first.

mrjoneill

NoQuarter wrote: »

If its not in the DC Rules you can use the higher courts rules. That's standard practice but be certain there is no DC rule first.

I had a friend thumb through Blackstone District Court Rules and he could not find it either but that is not conclusive either to its non existence some other practitioner suggested it was there but didn’t know the procedure in the form to use. As for a higher court I presume its using Circuit Court rules

NoQuarter

For a fact, if there is no Circuit Court rule for something, you can use the High Court rules instead. I dont have much DC experience but I would be it is the same.

johnnyskeleton

mrjoneill wrote: »

I had a friend thumb through Blackstone District Court Rules and he could not find it either

Is that an Irish publication? There are books on Irish law on issues such as district court procedure and discovery.

My two cents is that I don't think third party discovery is available in the district court and even if it was it is something that is very rarely granted.

Without meaning any offence, I'm all in favour of people having a bash at their court cases themselves, but for something as complex as this it might be worthwhile engaging a solicitor.

camphor

Any Third Party discovery can only be got by motioning the Court and demonstrating why it is necessary. This is the case in all courts. A non party can be served with a summons duces tecum and appear as a witness with the documents so it is rarely the case that Third Party discovery is necessary. It will also only be given when the person seeking discovery gives the Court an undertaking to pay the costs of the Third Party in making discovery.

mrjoneill

johnnyskeleton wrote: »

Is that an Irish publication? There are books on Irish law on issues such as district court procedure and discovery.

My two cents is that I don't think third party discovery is available in the district court and even if it was it is something that is very rarely granted.

Without meaning any offence, I'm all in favour of people having a bash at their court cases themselves, but for something as complex as this it might be worthwhile engaging a solicitor.

It seems so and from my understanding it’s the standard rule book for the District Court Rules
Just cant afford a solicitor and I'm chasing after what appears to be what has no reward at the end, but I want to get to the bottom of it

mrjoneill

camphor wrote: »

Any Third Party discovery can only be got by motioning the Court and demonstrating why it is necessary. This is the case in all courts. A non party can be served with a summons duces tecum and appear as a witness with the documents so it is rarely the case that Third Party discovery is necessary. It will also only be given when the person seeking discovery gives the Court an undertaking to pay the costs of the Third Party in making discovery.

I see why the courts can be so off putting to the amateur, all I need is a simple report to peruse at my own time to find what evidence I need for a hearing and it’s like facing a blank wall. I don’t necessarily want the author of the report in court and even if I had same in court does that guarantee me the opportunity to get the report which they seem to be hell-bend on I not getting.


The seems to be the route and the courts service have advised me
“This is done by way of Motion and Affidavit to the District Court.”
Anyone know what this procedure involves and the prescribed forms to use.

NoQuarter

mrjoneill wrote: »

I see why the courts can be so off putting to the amateur, all I need is a simple report to peruse at my own time to find what evidence I need for a hearing and it’s like facing a blank wall. I don’t necessarily want the author of the report in court and even if I had same in court does that guarantee me the opportunity to get the report which they seem to be hell-bend on I not getting.


The seems to be the route and the courts service have advised me
“This is done by way of Motion and Affidavit to the District Court.”
Anyone know what this procedure involves and the prescribed forms to use.

A further and larger problem you'll face based on what you just said is that that is an abuse of the discovery process. To get discovery, the documents need to be both "relevant" and "necessary" to prove your case, disprove the oppositions case or to save costs.

Obtaining a report to have a brows to see if there's any evidence you need wont cut it I'm afraid.

camphor

mrjoneill wrote: »

I see why the courts can be so off putting to the amateur, all I need is a simple report to peruse at my own time to find what evidence I need for a hearing and it’s like facing a blank wall. I don’t necessarily want the author of the report in court and even if I had same in court does that guarantee me the opportunity to get the report which they seem to be hell-bend on I not getting.


The seems to be the route and the courts service have advised me
“This is done by way of Motion and Affidavit to the District Court.”
Anyone know what this procedure involves and the prescribed forms to use.

http://legalprecedents.ie/index.php?option=com_docman&task=cat_view&gid=103&Itemid=75

johnnyskeleton

mrjoneill wrote: »

It seems so and from my understanding it’s the standard rule book for the District Court Rules
Just cant afford a solicitor and I'm chasing after what appears to be what has no reward at the end, but I want to get to the bottom of it

I'm sorry to hear that. Maybe if you went into your nearest F.L.A.C. centre (http://www.flac.ie/) they will talk to you about it.

Have you tried contacting the non-party and seeing if they will give you the documents you want voluntarily? Do these documents refer to your personal information such that they have to be disclosed in a data protection request? Without giving legal advice, these might be avenues that you can pursue without having to go into court.

mrjoneill

johnnyskeleton wrote: »

I'm sorry to hear that. Maybe if you went into your nearest F.L.A.C. centre (http://www.flac.ie/) they will talk to you about it.

Have you tried contacting the non-party and seeing if they will give you the documents you want voluntarily? Do these documents refer to your personal information such that they have to be disclosed in a data protection request? Without giving legal advice, these might be avenues that you can pursue without having to go into court.

Yes I have asked written and send a formal request using the No. 46A route to find to my cost it was a waste of my effort and money.
I didn’t think of the FLAC route but I don’t have time on my side now for a consultation or in getting the report. Just can’t understand why access to the courts is so difficult in the minefields and mazes. The report I seek don’t contain personal information per se but prob I’m included in a group but don’t think the Data Protection act would be in my favour in such discovery as such is concerned with principally the storage and release of personal data. Really what I need is the summarisation of a report that was compiled. And again as one often finds in these court situations one is faced with high flying lawyers defending the indefensible while those sinned against dip their feet with trepidation in the torrent to seek justice.

mrjoneill

camphor wrote: »

http://legalprecedents.ie/index.php?option=com_docman&task=cat_view&gid=103&Itemid=75

Tks for the link but its not very clear of the process involved and to the precise form to use.
The “affidavit of discovery” form seems to me to be the respondents reply to the seeking of discovery.
Looks like my only solution at this stage is to use the No 44.1 Witness Summons route and that itself is tricky.

mrjoneill

NoQuarter wrote: »

A further and larger problem you'll face based on what you just said is that that is an abuse of the discovery process. To get discovery, the documents need to be both "relevant" and "necessary" to prove your case, disprove the oppositions case or to save costs.

Obtaining a report to have a brows to see if there's any evidence you need wont cut it I'm afraid.

It would be both if it is a bona-fide report, but one never knows what one can find in these things till they are read.

Cody Pomeray

The same rule applies to everyone. The burden is on the moving party to show that the third party is likely to have a relevant document.

The burden can be overcome by the third party not denying that they have in their possession a specific document you anticipate, and by not denying its relevance.

But overall, if you think this is a cumbersome process, it's because it is. You really need to be sure that the third party has something useful, a Judge is likely to be get pretty impatient with meandering fishing trips.

mrjoneill

Cody Pomeray wrote: »

The same rule applies to everyone. The burden is on the moving party to show that the third party is likely to have a relevant document.

The burden can be overcome by the third party not denying that they have in their possession a specific document you anticipate, and by not denying its relevance.

But overall, if you think this is a cumbersome process, it's because it is. You really need to be sure that the third party has something useful, a Judge is likely to be get pretty impatient with meandering fishing trips.

I have no problem with the need to show that discovery is both necessary and relevant otherwise the courts would be full of those on fishing expeditions, what I argue is the Court Rules are tedious and a maze and despite report after report recommending easier access to the public it still is inaccessible to the ordinary member of the public. And I don’t accept that the process is cumbersome “it's because it is” much more could be done both by publication in having a much more user friendly web site and the courts itself having trained staff assisting the public. And also those scales of justice are weighed heavily in the side of those who can afford most.

mrjoneill

NoQuarter wrote: »

If its not in the DC Rules you can use the higher courts rules. That's standard practice but be certain there is no DC rule first.

Just out of curiosity what is the precedent or rule for this.

Cody Pomeray

mrjoneill wrote: »

I don’t accept that the process is cumbersome “it's because it is” much more could be done both by publication in having a much more user friendly web site and the courts itself having trained staff assisting the public.

You're opening a whole load of separate issues there. Non party discovery is cumbersome because the arm of discovery is not intended to reach into a non party's affairs except in unusual circumstances.

I am perhaps going too far in having used the word 'cumbersome' for a motion and (presumably) affidavit, nevertheless it is reflective of the 'bespoke' nature of these proceedings that this approach is taken.

I agree that the courts website and facilities can be clunky and frustrating to navigate. But it is absolutely insane to suggest that the courts actively encourage or go out of their way to assist litigants in person.

This group of litigants are a curse on the courts. They delay, thwart, bend (and get away with) perfectly sensible, nevermind obligatory, court rules. In most cases, these people are as much, if not more of a liability to themselves as they are to fair procedures.

In case you think I'm absolving the legal professions of blame, I'm not. Decades, nay centuries, of price fixing, out-dated rules and protectionism have painted both professions into a corner. Lay litigants are our sorry penance.

johnnyskeleton

mrjoneill wrote: »

Just can’t understand why access to the courts is so difficult in the minefields and mazes.

It's because what you are asking for, third party discovery, is a very unusual thing anyway, so you can't really say that access to the courts is difficult because a particularly difficult part of the system is difficult. You seem to run the rest of your case without a problem.

mrjoneill wrote:

I didn’t think of the FLAC route but I don’t have time on my side now for a consultation or in getting the report....And again as one often finds in these court situations one is faced with high flying lawyers defending the indefensible while those sinned against dip their feet with trepidation in the torrent to seek justice.

That's not an accurate picture at all. There are free legal advisers. In some cases there is legal aid. If you don't have the time for something because you are busy that's fine, but you can hire a lawyer at a reasonable price to do the work for you. Court cases take time and expertise. If you want to do it yourself you have to gain that expertise and that also takes time.

Even within the limits of this thread which prevents legal advice being given, you have been given a wealth of information yet you still complain about the legal system.

I'm afraid you can't expect the legal system to change to suit you just because you don't have the time to learn what you need to know. I can't start building a house without any building or engineering knowledge, refuse to learn what needs to be done and then assume that my building work is correct.

johnnyskeleton

mrjoneill wrote: »

what I argue is the Court Rules are tedious and a maze and despite report after report recommending easier access to the public it still is inaccessible to the ordinary member of the public.

Not at all, you found everything that you are looking for which exists. What you are attempting to do seeking third party discovery in the district court is to bring an application that is not provided for in law for the district court because it is not really meant to be done there. You are, in effect, trying to get the judge to make new law by following the High Court Rules.

And I don’t accept that the process is cumbersome “it's because it is” much more could be done both by publication in having a much more user friendly web site and the courts itself having trained staff assisting the public. And also those scales of justice are weighed heavily in the side of those who can afford most.

The Irish courts website is one of the most accessible courts websites that i've ever come across, bar maybe the UK Supreme Court.

Having trained staff assisting the public - what exactly does that mean? Trained in filing documents - there already are such people in the District Court Office. Trained in law - you mean solicitors?

mrjoneill

Cody Pomeray wrote: »

You're opening a whole load of separate issues there. Non party discovery is cumbersome because the arm of discovery is not intended to reach into a non party's affairs except in unusual circumstances.

I am perhaps going too far in having used the word 'cumbersome' for a motion and (presumably) affidavit, nevertheless it is reflective of the 'bespoke' nature of these proceedings that this approach is taken.

I agree that the courts website and facilities can be clunky and frustrating to navigate. But it is absolutely insane to suggest that the courts actively encourage or go out of their way to assist litigants in person.

This group of litigants are a curse on the courts. They delay, thwart, bend (and get away with) perfectly sensible, nevermind obligatory, court rules. In most cases, these people are as much, if not more of a liability to themselves as they are to fair procedures.

In case you think I'm absolving the legal professions of blame, I'm not. Decades, nay centuries, of price fixing, out-dated rules and protectionism have painted both professions into a corner. Lay litigants are our sorry penance.

And why is their confusion by the lay litigants, I would argue among many others issues it’s the arcane system of the courts. I think you miss the point here what the courts should be for dispensing justice to all, and that can be got by easy access to the courts. Obviously you are looking at the system through the lenses of a lawyer.

mrjoneill

Not at all, you found everything that you are looking for which exists. What you are attempting to do seeking third party discovery in the district court is to bring an application that is not provided for in law for the district court because it is not really meant to be done there. You are, in effect, trying to get the judge to make new law by following the High Court Rules.

I understand that this discovery is available in the Circuit and High Court and as to why it’s not available in the District when available in other courts is baffling. I'm not trying to get a judge to do anything that’s not allowed as I full well know as the judge himself knows they are also subject to appeals to a higher court when they make decisions not in conformity with the law and precedent.


The Irish courts website is one of the most accessible courts websites that i've ever come across, bar maybe the UK Supreme Court.

Looking at it with the eyes of a lawyer, I'm sure to the ordinary person in the street who would consult it to the view to litigation would not be to the same view.


Having trained staff assisting the public - what exactly does that mean? Trained in filing documents - there already are such people in the District Court Office. Trained in law - you mean solicitors?

I have not a criticism of court staff they are more than helpful and willing to assist but there seems to be grey areas they don’t know off and they should have access to a hotline of a professional who knows the rules and regulations of the District Court and I believe such can be gained from doing actual court work. Don’t the Small Claims Court register have a proactive role???

mrjoneill

johnnyskeleton wrote: »

It's because what you are asking for, third party discovery, is a very unusual thing anyway, so you can't really say that access to the courts is difficult because a particularly difficult part of the system is difficult. You seem to run the rest of your case without a problem.



That's not an accurate picture at all. There are free legal advisers. In some cases there is legal aid. If you don't have the time for something because you are busy that's fine, but you can hire a lawyer at a reasonable price to do the work for you. Court cases take time and expertise. If you want to do it yourself you have to gain that expertise and that also takes time.

Even within the limits of this thread which prevents legal advice being given, you have been given a wealth of information yet you still complain about the legal system.

I'm afraid you can't expect the legal system to change to suit you just because you don't have the time to learn what you need to know. I can't start building a house without any building or engineering knowledge, refuse to learn what needs to be done and then assume that my building work is correct.

I’m one of over 80 in the same difficulty and I’m the only one to seek redress through the courts and to the reason is because of the costs involved in engaging a professional and the difficulty of a DIY. And I have taken the time and effort to try figure it out but I have run out of time in seeking help from FLAC and they operate very restricted hours.

dermot_sheehan

Have you considered the use of a witness summons for the production in court of a document if you know for certain it exists.

A witness summons can be served on the person with custody of the document directing them to bring it to court.

You are liable for that witness' reasonable expenses.

camphor

mrjoneill wrote: »

I’m one of over 80 in the same difficulty and I’m the only one to seek redress through the courts and to the reason is because of the costs involved in engaging a professional and the difficulty of a DIY. And I have taken the time and effort to try figure it out but I have run out of time in seeking help from FLAC and they operate very restricted hours.

Would you expect the staff in a hardware shop to tell you how to install an electric shower? And help you with a phone query when you don't understand the manual? The courts service staff are not there to give everybody who rings up a course on procedure.

mrjoneill

dermot_sheehan wrote: »

Have you considered the use of a witness summons for the production in court of a document if you know for certain it exists.

A witness summons can be served on the person with custody of the document directing them to bring it to court.

You are liable for that witness' reasonable expenses.

That is what I ended up doing and enc the all important Viaticum.

mrjoneill

camphor wrote: »

Would you expect the staff in a hardware shop to tell you how to install an electric shower? And help you with a phone query when you don't understand the manual? The courts service staff are not there to give everybody who rings up a course on procedure.

To repeat again for the umpteenth time the courts should be about dispensing justice to all not those who can afford most as is the present case. Whatever is needed to level that playing pitch should be done and one of the ways is having a more pro-active approach in the District Court like that of the Small Claims Court. And I have indeed found the District Court staff helpful and pleasant to deal with but as I said earlier for an in-depth knowledge of what is an arcane system it really needs a practitioner to advice. And for other services one does normally get tips on products that one buys from retailers if it has unusual features. And all I want for the District Court is a more user friendly rule book and for the courts to be more user friendly.

johnnyskeleton

mrjoneill wrote: »

To repeat again for the umpteenth time the courts should be about dispensing justice to all not those who can afford most as is the present case. Whatever is needed to level that playing pitch should be done and one of the ways is having a more pro-active approach in the District Court like that of the Small Claims Court. And I have indeed found the District Court staff helpful and pleasant to deal with but as I said earlier for an in-depth knowledge of what is an arcane system it really needs a practitioner to advice. And for other services one does normally get tips on products that one buys from retailers if it has unusual features. And all I want for the District Court is a more user friendly rule book and for the courts to be more user friendly.

Look, if you want to make that argument you have chosen a very bad example with non party discovery. How can something that is a novel untried procedure be arcane at the same time?

Pro Hoc Vice

johnnyskeleton wrote: »

Look, if you want to make that argument you have chosen a very bad example with non party discovery. How can something that is a novel untried procedure be arcane at the same time?

Have to agree with that logic. In fact I would go further the DC is a court that is simple to use, third party discovery in any court is anything but simple. Having drafted loads of discovery in CC and HC I have never been asked to draft third party discovery in any court, it's in my understanding a rare beast at the best of time.