What is an Affidavit of Documents?
An Affidavit of Documents is a sworn statement that lists the documents that are now, or have been, in a party’s possession or within a party’s power or control and are in any way relevant to the issues in the litigation.
Why is it so important?
The Affidavit of Documents is absolutely crucial – the integrity of the litigation process depends on the parties complying with their obligations to prepare a proper Affidavit.
What are the consequences of non-compliance?
If an Affidavit of Documents is not delivered to the other parties or if a party fails to disclose a document, or fails to produce a document for inspection when required, the court may make an order striking out the party’s pleading and render judgment against the party. In addition, if a party fails to make full or timely disclosure, the party may be precluded from relying on the undisclosed document at trial, which can seriously undermine the party’s position and prejudice its case.
What should the parties do now?
The parties must produce every single document that might, in any way, be relevant.
The Rules of Civil Procedure require that the parties disclose the existence and location of every document related to the matters in issue in the action, including documents which provide direct evidence on any issue and documents which may, directly or indirectly, enable either party to advance its case.
You will be required to swear under oath that, aside from the documents listed in your Affidavit, there are no other documents whatsoever relating to the matters in question in the action. You are required to conduct a diligent search of your records in order to swear your Affidavit. You must also disclose whether there are any documents which were once in your possession or power or under your control which have either been lost or are with some other party. If there are documents which are no longer in your possession, power or control you must indicate when and how you lost possession, power or control over these documents and the present location of the documents.
Subject to the rules of privilege, all documents in a party’s possession, power or control may be examined by the other parties and must be available at your examination for discovery and at trial.
The following information will assist you in determining what information must be disclosed:
- “Documents” includes all written materials, sound recordings, video tapes, films, photographs, charts, graphs, maps, plans, surveys, books of account, and information recorded or stored by means of any device;
- A document is deemed to be within your power if you are entitled to obtain the original document or a copy of it, and the party seeking it is not so entitled;
- You are required to disclose any insurance policy under which an insurer may be liable to satisfy all or part of any judgment that may be obtained in the action, or to indemnify or reimburse you for money paid in satisfaction of all or part of a judgment;
- Some documents, otherwise relevant, may be subject to a privilege such that they need not be made available to the other side. The existence of these documents must be disclosed to the other party. You must provide all documents and I will advise you as to whether or not any of them are privileged.
What happens if you discover an error or omission?
If, subsequent to swearing the Affidavit, a party discovers that the Affidavit is inaccurate or incomplete, or if the party comes into possession or control of a document that relates to the matter in issue, the party should advise its lawyer immediately.