Conducting discoveries under Order XI, CPC in times of pandemic and how US laws can help us

The Author, Prajval Albuquerque is a Legal Associate at Bolster Legal in Bengaluru.

Introduction:

The highly ignored order XI read with Section 30 of CPC which relates to the Discovery and Inspection may just hold the key to collect key evidence in times of social distancing and COVID 19. The problem with Indian litigation scenario has been our heavy reliance on the process of examination of witness.        

The legislators of the Code would have presumed the current scenario wherein the physical interaction would not be possible and there ought to be other modes for collecting evidence. In my opinion though the intentions of the legislators were noble they fell short in defining a structured process to carry out Discovery under this order. In the name of carrying out the process the only reference we have is Appendix C. However, Form No. 2 and Form No. 3 of Appendix C are drafted so briefly that suppose if an individual desired to use the provisions of Order XI the forms would by far only help him in inserting the preliminary objection, that is it. This however leaves open a door of opportunity for the lawyers to create their own templates for propounding and responding to interrogatories.

• What we can learn from the California Civil Code:

I agree that Order XI lays down a procedure to conduct discoveries but there has not been 

a formal structure to execute the same, and that is where the Californian Civil Code comes into picture.

            One of the major differences I noticed while comparing Section 30 of CPC with California Civil Code was that under their civil laws the leave of the court need not be obtained while propounding interrogatories [CCP 2030.010 (a)]. I hope the Indian legislators will someday work towards removing this hurdle. But for now even if a party in India is successful to get leave from court to propound interrogatories, there simply exists no standard procedure to exercise the provisions under Order XI. This is where the Californian Civil laws come to our assistance.

Below is the overview of the legal practices in California which may pave way for effectively implementing provisions in Order XI:

1. Form Interrogatories:

The form interrogatories abbreviated as FROG are a standard set of questions which are relevant to all cases. These are printed and approved by the District courts; an attorney ticks the questions on the form for which he wants answers to and then delivers it to the other party. Unfortunately, in India we don’t have any standard form templates, but this can be a blessing in disguise as well as attorney’s can prepare their own templates to fill this gap or simply prepare special interrogatories. [discussed below]

2. Special Interrogatories:

Special Interrogatories seek detailed answers to questions from the other party. This can be compared to the written examination of chief, but conducted by other party. The benefit of collecting information through this method is that you don’t have to rely on the examination of chief conducted by the opposing lawyer to collect detailed information about the cause of action and related issues. This does not undermine the need for examination in chief, but the responses received to Special Interrogatories will help in framing effective and accurate questions for cross examination. 

3. Request for Admission:

Request for admission can be compared to a written form of cross examination. The questions asked are straight forward and the Responding Party has to either admit them or deny them. Leading questions can be propounded here. Under Californian law the Propounding party may ask every denial to be substantiated under Form Interrogatory but in India in the absence of Form Interrogatories the may be propounded under the Special Interrogatory. The substantiation requested here is very close ended and leaves little room for creating ambiguity. Below is a sample interrogatory asking for substantiation of any denial:

            Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

1. state the number of the request;
2. state all facts upon which you base your response;
3. state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and
4. identify all DOCUMENTS and all other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.
5. Request for Production:

This set of interrogatories if not anything can help the propounding party; ascertain what documents are in the possession of other party, and what may be procured invoking Rule 12 of the Order.

From the Responding party’s point of view there are objections to all these interrogatories. In India these are enumerated in Rule 6, Rule 7, and Rule 20, and a basic proforma for the same is in Rule 9 of the read with Form No. 3 of Appendix C.

• Advantages of propounding Interrogatories:

The position under Section 30 of the Code is contrary to the position in US where seeking responses to discoveries is a norm and need not be ordered by Court. I agree that this can be a drawback, but the benefits of the same outweigh the drawback of time taken to file an application under the same section. Some of the major benefits I see are:

1. Most of the questions are answered in the Interrogatories reducing the number questions to be asked in cross examination or eliminating the need for the same.
2. It can give new perspectives while preparing the questions for cross examination.  
3. The responses to such interrogatories have to be provided within 10 days. This considerably reduces the time required to complete the evidence collection process of the court.
4. The responding party can be compelled to answer to the propounded interrogatories [Rule 11].
5.  If the Plaintiff fails to comply with any order to answer interrogatories then the court may dismiss the suit and if the same is true for the Defendant then the party can be placed in a position as if he had not defended the suit [Rule 21]
6. The responses to such interrogatories can be used as evidence during trial [Rule 22]

• Conclusion:

From my perspective in supporting US based Attorneys I have come to the conclusion that the US legal system is better suited to function in times of COVID 19 and social distancing. Theoretically Indian procedural laws have provisions to smoothly carry out the trial even during the times of pandemic, but the reality is we have never looked seriously at these provisions and that is one of the reasons why our trial courts are unable to function to their fullest capacity.

We can either look at this Pandemic as an hinderance to the legal profession or an opportunity to develop jurisprudence around the largely neglected provisions in law. If we choose the latter then we will be able to develop our legal system in a Tech based environment where the functioning of Courts will not be affected.

It is in this context that a Legal Associate who has knowledge of Indian Laws and has some experience of working with US based attorneys can be a great asset to a team; helping law firms streamline their practice and use of technology to the optimum level thus helping the clientso  with their suits and resolving their disputes.

Besides the routine legal practices there are so many other avenues where such a Legal Associate can add value to a law firm like:

• Drafting employer employment agreements in times of pandemic,
• Drafting internal and external policies with regards to customers and employees in times of COVID 19,
• Propounding and responding to Interrogatories under Order XI,
• Recording, maintaining, and analyzing evidence digitally,
• Streamlining the Indian law practices with US standards.

            The boat has long sailed for using traditional legal practices to revive your practice post the pandemic. The future of the legal practice is tech driven and a lot of it will depend on aligning your legal practice with global practices, and it can be only achieved by having a diversified and tech driven work force.