How parties are compelled to reveal documents — including those that damage their own case — and the privileges that keep certain communications shielded from the other side.
Litigation runs on documents, and the outcome can turn on what each side must hand over and what it is entitled to hold back. This chapter begins with the fundamentals of disclosure — what counts as a document, the meaning of control, and the duty to disclose even harmful material — then works through standard disclosure, the reasonable search, the list and the disclosure statement, alongside the duty to preserve documents, the continuing obligation and applications for specific disclosure. It then covers the extended disclosure models in the Business and Property Courts before turning to legal professional privilege in both its forms, the crime/fraud exception, waiver and the consequences of mistaken disclosure. It closes with the without prejudice rule and Calderbank offers, the restriction on collateral use, and the sanctions and adverse inferences that can follow non-compliance.
