Each party is under a duty to produce all relevant documents that are in its possession or power. A document is relevant if it advances its case or it advances the case of the other party. The only exception is privileged communications, eg, legal advice or communications between client and legal counsel. Where privilege is claimed the court may examine the document(s) for the limited purpose of deciding the claim to privilege.
All documentary evidence relied upon by parties in support of their pleadings and examination-in-chief must be produced in original and filed in court. The court may also direct any document to be impounded and kept in safe custody for a period and on conditions the court deems fit. These rules also apply to material objects that may be produced as evidence.
Parties may apply to the court for an order directing the other party to make a discovery on oath of documents that are in the other party’s possession or power, in relation to any matter in question in the suit, or issue a notice to produce any document referred to in the pleading or affidavit. The court may also at its discretion at any time during the pendency of the suit order the production by any party of documents in its possession or power.
Inspection of documents disclosed or produced must be offered to the other party.
Are any documents privileged? Would advice from an in-house lawyer (whether local or foreign) also be privileged?
Sections 126 to 129 of the Indian Evidence Act 1872 (Evidence Act) deal with legal privilege. Section 126 stipulates that no barrister, attorney, pleader or vakil (an Indian attorney) shall at any time be permitted, unless with his or her client’s express consent, to disclose any communication made to him or her in the course and for the purpose of his or her employment as such barrister, pleader, attorney or vakil, by or on behalf of his or her client; to state the contents or condition of any document with which he or she has become acquainted in the course and for the purpose of his or her professional employment; or to disclose any advice given by him or her to his or her client in the course of and for the purpose of such employment. This obligation continues even after the employment has ceased, and also extends to interpreters, clerks and servants. Part VI, Chapter II, section II, Rule 17 of the Bar Council of India Rules prohibits an advocate from breaching the obligations imposed by section 126 of the Evidence Act either directly or indirectly, and thereby makes the breach of attorney-client privilege a violation of the Bar Council Rules.
This privilege is, however, not available to any communication made in furtherance of an illegal purpose or with respect to any fact observed after the commencement of employment, as such showing that any crime or fraud has been committed since the commencement of his or her employment.
Section 129 of the Evidence Act protects a client from being compelled to disclose to the court any confidential communication that has taken place between him or her and his or her legal adviser, unless he or she offers him or herself as a witness.
Professional communications with in-house lawyers are not privileged. Chapter II, section VII, Rule 49 of the Bar Council of India Rules provide that a person who is a full-time salaried employee of an organisation cannot practise as an advocate. Thus, if the in-house lawyer is on the employment rolls, legal privilege does not extend to him.
Do parties exchange written evidence from witnesses and experts prior to trial?
Affidavits in lieu of examination-in-chief are filed as written evidence of witness of fact (and of expert witness). Under the CPC, there is no provision for the simultaneous exchange of affidavits in lieu of examination-in-chief. Instead, the plaintiff files its affidavits in evidence first, after which the case is set down for recording evidence of the plaintiff’s witnesses. Once the plaintiff’s evidence is recorded, the defendant is directed to file its affidavits in lieu of examination-in-chief and the defendant’s witnesses’ evidence is recorded.
However, parties must simultaneously exchange their list of documents and list of witnesses prior to recording evidence.
How is evidence presented at trial? Do witnesses and experts give oral evidence?
The Evidence Act governs the rules of evidence. Evidence-in-chief is by way of affidavit. However, the court may permit evidence-in-chief to be led by examination in open court. This is followed by cross-examination and then re-examination, which is permitted in limited circumstances. Evidence may also be documentary and the Evidence Act recognises digital records. While relying on evidence in electronic form, the provisions of section 65B of the Evidence Act, which lays down the circumstances under which electronic evidence is admissible, must be complied with and a certificate testifying that the electronic document is genuine and the machine from which it was generated is working properly is to be produced. In a recent decision, the Supreme Court in Shafhi Mohammed v State of Himachal Pradesh Special Leave Petition (CRL) No. 2302 of 2017 has held that a party who is not in possession of the device from which an electronic document is generated need not file a section 65B certificate.
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