One step in the discovery process is preparing an affidavit of documents, which involves gathering, naming, organising and indexing all documents relevant to a case. The key steps in preparing an affidavit of documents is as follows:
- Gather all relevant documents;
- Scan all hard copies so everything is electronic;
- Consistently name the files in a useful way;
- File the documents into electronic folders;
- Prepare the affidavit of documents using a Form 30A or Form 30B;
- Swear or affirm the affidavit of documents;
- Assemble the affidavit of documents;
- Serve the affidavit of documents on the other parties.
Each of these steps will now be discussed in turn.
1. Gather all Relevant Documents
Depending on the complexity of the case, it can take some time to gather the relevant documents. What documents are relevant? The pleadings (statement of claim, defence, etc.) will tell a story through factual allegations and anything discussed in the pleadings is generally relevant. Relevant documents may include contracts, letters, emails, photos, videos, financial records, medical records and so on.
Affidavits of documents are generally electronic nowadays in PDF format, which is helpful in the long-run for trial preparation. Hard copies of paper documents should be scanned to PDF. The hard copies should be kept, for example copies of original contracts, in case anyone wants to see the original document.
3. Name the Files
A great file naming protocol is “YYMMDD [description]” because that will include both the date and a description of the document, which will help down the road when preparing the affidavit of documents form. A few examples:
220724 agreement of purchase and sale
230101 letter from Jane Doe to John Smith
230207 email from John Smith to Jane Doe
This approach to naming will mean that the documents fall into chronological order when filed into folders and there will be a description that can be inputted into the affidavit of documents form.
4. File into Electronic Folders
The electronic documents need to be organised in a sensible way. It would make sense to have a set of folders to help organise the documents. Some folders may be:
There can be as many folders as necessary and possibly a level of sub-folders if that helps with organisation.
5. Preparing the Affidavit of Documents Form
A litigant who is an individual will use a Form 30A. A litigant who is a corporation or partnership will use a Form 30B. We have professionally-formatted template affidavits of documents available for purchase here (scroll down to the discoveries area).
Please note that an affidavit of documents has a few schedules:
Schedule A. This is where you list relevant documents you are willing to share and will be shared. For most cases, there will be many documents listed here. The list can be organised with subheadings that match the folder names created.
Schedule B. Is to identify documents that are lawyer-client privileged (and therefore confidential, relate to settlement (without prejudice) or litigation privileged (prepared for litigation purposes). These documents are not shared.
Schedule C. A list of documents that you once had, but no longer had. For example, if you lost a document or gave a document to someone else, that would be listed here. This is generally a short list and sometimes there are no documents.
Schedule D. A list of potential witnesses. Please note this is only for simplified procedure matters only. It does not need to be included for ordinary procedure matters.
6. Swear or Affirm the Affidavit of Documents
An affidavit of documents can be sworn or affirmed before a lawyer, paralegal, notary public or commissioner for taking affidavits. Many Court staff are commissioners. Virtual commissioning by video conference is possible.
7. Assemble the Affidavit of Documents
The sworn or affirmed affidavit plus the Schedule A documents need to be assembled in some fashion. Generally this will be into a single PDF document.
8. Serve the Affidavit of Documents
An affidavit of documents, together with copies of the Schedule A documents can be served by email. If the file is large, it can be uploaded to a file-sharing program and then an email sent with a weblink to download the files.
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