Document Production and Obstruction of Proof: Reaching the Other Party's Materials

Abstract

This volume asks what the court can do when the refusal of the opposing party holding the key documents blocks relief. Only if the duty to produce, necessity, and the protection of confidentiality are heard separately, and the effect of noncompliance is linked to the assertions concerning the contents of the documents, will access to materials not turn directly into an automatic victory. The path to relief opens where the duty to produce documents, relevance, and the need for examination of evidence are recognized and the limits under the statutory grounds for protection are satisfied, and closes where the application for document production is not granted because no duty to produce is recognized or there is no need for examination of evidence. The six sections address, in turn, the starting point of the duty to produce, the label of "internal document", relevance and necessity, partial production and in camera review, the effects of noncompliance, and destruction and obstruction of proof. The strongest counterargument is as follows. Disclosure of documents may irreparably harm trade secrets and the rights of third parties. The technical operation of data preservation, hashing, and chain of custody is not addressed in this volume.