When a case is brought in the Cayman Islands involving a disputed question of fact, a litigant is entitled to discovery of documents relevant to the issues raised in the dispute. Relevant means if the documents assist one party, however slightly, to advance his case. The definition of documents is broad to include, paper, computerized including metadata, audio or video, and contents of portable devices. The rules contemplate discovery to be given two weeks after the pleadings close and the turnover of documents in the “possession, custody or power” of the litigant. “Possession” means having the right to possess the document, whereas “custody” is having possession without a right to permanently possess. “Power” means having an enforceable right to demand the document in the hands of third parties such as attorneys or accountants.
Parties must conduct a careful and thorough search and where a party operates in different countries or different premises, a search must be conducted there. Discovery is given by a party listing all of the relevant documents for his opponent. A list has several schedules for (i) relevant documents in the party’s possession, custody or power, (ii) those documents to which the party objects listed in general terms, (iii) confidential documents and, (iv) those documents no longer in the party’s possession, custody or power.
If a party is not satisfied with the list, a party can be required to produce a further and better list. A court can require a party to swear in an affidavit that the list is accurate and complete. A court can also order discovery of specific documents if it is satisfied that the documents are likely to exist and their production is necessary for the fair disposal of the proceedings or to save costs. A judge can personally inspect the documents for compliance.
The Cayman court rules permit orders for oral discovery. Such an order is to obtain information which is relevant, but which has not been recorded in a document. Oral discovery in the Cayman Islands is unique to other Caribbean jurisdictions. The rules also permit a party to serve a list of questions that are relevant to the matters in question. A party receiving the list is obliged to answer, and a court can require further answer if the court deems the answer insufficient.
There is a continuing obligation to give discovery beyond the production of the list of documents up to the end of trial. Documents may be created later in the proceedings which are discoverable or as the case develops, documents may become relevant which were not at the outset of the case.
Third parties resident in the Cayman Islands can be the subject of a subpoena for the production of relevant documents and deposition testimony where the court is satisfied that it is in the interests of justice. 28 U.S.C. Section 1782 allows a party to a foreign legal proceeding to apply to the a US court to obtain documents or oral testimony. The Cayman court has upheld such a procedure, although it is cautious to ensure that the discovery is not oppressive or abusive, and particularly before Cayman proceedings have begun, if the purpose is to cross-examine in advance of trial a witness who intends to testify.
Finally, a party may not use for any purpose other than the litigation a document or information provided in discovery, unless the document is read to or by or referred to in court.
Cayman Islands discovery was adopted from Canadian rules of civil procedure and consequently, have many similar characteristics of US discovery. Foreign litigants should try to take advantage of these discovery rules when more oppressive rules arise in other Caribbean countries.