Open Door Disclosure in Civil Litigation

Abstract

This article offers a defence of broad disclosure in civil litigation given its value in helping parties enforce their legal rights or uphold the law. Nonetheless there is an inherent tension between accuracy, cost and time in determining disputes, and there are legitimate concerns that disclosure has become too costly. The article argues that the primary disclosure obligation in large cases should be to open one's door to the other party. It would then be incumbent on the party seeking disclosure to review an opponent's files for relevant documents. The party giving disclosure would have additional rights to protect privileged and private information, including guarantees against the use and further disclosure of such information. This model will promote efficiency because it puts the decision as to how much to invest in disclosure directly in the hands of the party seeking it. Recent proposals that would allow open door or ‘keys to the warehouse’ disclosure are welcome, and it would be desirable to formally recognise this disclosure model in the rules.