What is pre-litigation discovery?
A prospective litigant may be unsure about who to sue or whether a viable cause of action exists. To address this uncertainty, there is a pre-litigation mechanism (in other words, an avenue before legal proceedings are filed), known as pre-litigation discovery (or preliminary discovery).
At its core, pre-litigation discovery is designed to assist an applicant to:
- determine a prospective defendant’s identity or whereabouts; and/or
- obtain documents from a prospective defendant or others to enable a decision to be made as to the commencement of proceedings.
Broadly speaking, to succeed in a pre-litigation discovery application you will need to demonstrate:
- where seeking the identity or whereabouts – that reasonable enquiries have been made but the prospective defendant still cannot be sufficiently identified or located;
- the pre-litigation discovery application is for the purpose of potentially commencing proceedings – i.e. you can’t have made the decision to commence proceedings already and are just trying to get further information;
- the individual / entity against whom preliminary discovery is sought probably has information that would tend to assist (low threshold).
- the applicant has an apparently effective cause of action (low threshold).
Be cautious of simply jumping to a preliminary discovery application – as there may be other ways of getting the information you need and you may want to be cautious of tipping off any potential recovery target!
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
