List of documents (Form 38)

Discovery in the Federal Court is governed by Part 20 of the Federal Court Rules 2011. A party must not give discovery unless the Court has ordered it (r 20.12). Once ordered, a party gives discovery by serving a list of documents on all parties (r 20.16(1)), and the list must be in accordance with Form 38 (r 20.17(1)). The list must describe each category of documents in the party's control, each document that is no longer in the party's control (with when it was last held and what became of it), and each document for which privilege from production is claimed, with the grounds (r 20.17(2)). It must also identify any category of documents that was not searched and say why (r 20.16(2)). The list is verified by an affidavit made by the right person under rule 20.22 (r 20.17(4)).

When you need it

• The Court has ordered you to give standard discovery under rule 20.14 or non-standard discovery under rule 20.15.
• You are a non-party ordered to give discovery under rule 20.23. A non-party must file the list (r 20.24).
• You need to list privileged documents, or documents you once held but no longer have, as well as documents you will produce.

1. 1

   Copy the heading and identify the order

   Use the file number, District Registry, Division and party names from the proceeding, then insert the date of the discovery order and the role of the party making the list.

2. 2

   Complete the verifying affidavit

   Insert the deponent's name, address and occupation and choose oath or affirmation. Say whether the deponent is the party or an officer authorised to make the affidavit for the party. Rule 20.22 sets out who may make it, for example an officer of a corporation who knows the facts.

3. 3

   Choose the right wording in each paragraph

   Pick knowledge, or knowledge, information and belief, and pick 'my control' or 'the control of' the party, and delete the options that do not apply.

4. 4

   Have it sworn or affirmed

   Complete the jurat with the place and date. The deponent and the witness must sign each page of the affidavit, as the form notes.

5. 5

   Offer inspection

   State the address and the dates and times when the Part 1 documents can be inspected, then date and sign the list as the party or its lawyer.

6. 6

   Fill in Parts 1, 2 and 3

   Part 1: documents you hold and do not claim privilege for, described by category or individually, with number, date or period and whether each is an original or copy. Part 2: documents held but privileged, with the ground of privilege for each. Part 3: documents no longer held, with when each was last held and what became of it.

• Serve the list on every party to the proceeding (r 20.16(1)). A party's list must not be filed in the Court (note 1 to r 20.16).
• A non-party ordered to give discovery files the list (r 20.24).
• Serve it within the time set by the discovery order; the Court specifies the time for compliance in its order (note 2 to r 20.16).
• Discovery is a continuing obligation while the order stands: documents found later that the order covers must also be discovered (r 20.20).

• You cannot claim privilege for a document only because it relates solely to your own case and does not help another party's case (r 20.19).
• You need not list copies of a document just because the original or another copy is discoverable (r 20.18).
• The Central Practice Note (Part 10) expects discovery to be proportionate and discussed between the parties first, and the Technology and the Court Practice Note covers electronic discovery protocols and document descriptions.