“ ORDER 34B
NON-PARTY PRODUCTION

Notice for non-party production

“2. On application by a party to an action, the Registrar shall, unless the Court otherwise orders, issue a notice requiring a person who is not a party to the action to produce for inspection a document in the person's possession or control relating to a matter in question in the action that the person could be required to produce at the trial of the action.

Form of notice

“3. A notice for non-party production shall be in accordance with Form 27A in the First Schedule.

Service of notice

“4. (1) A notice for non-party production shall be served personally.

“(2) Within 2 days after a notice for non-party production is served on the respondent to the notice, a copy of the notice shall be served on each other party to the action who has an address for service by leaving it at that address.

Inspection by other parties

“5. For the purpose of deciding whether to make a claim referred to in paragraph 7 (1) (a), any party to an action on whom a copy of a notice for non-party production is served pursuant to subrule 4 (2) is entitled to inspect a document specified in the notice (other than a document in respect of which any other party makes such a claim) immediately before that document is produced in compliance with the notice.

Application to set aside or vary

“6. (1) The respondent to a notice for non-party production or any other party to the action may, within 14 days after its service on the respondent, apply to the Court to have the notice set aside or varied.

“(2) On an application under subrule (1), the Court may make such orders as the Court thinks fit.

Privilege or objection

“7. (1) If the respondent to a notice for non-party production or any other party to the action—

        (a)     claims that a document specified in the notice is privileged from production; or

        (b)     otherwise objects to its production;

the respondent need not produce the document and the applicant for the notice, the respondent or that other party may apply to the Court for a determination in relation to the claim or objection.

“(2) If the respondent to a notice for non-party production fails to produce a document specified in the notice, the applicant for the notice may apply to the Court for a determination in relation to the failure.

“(3) On an application under subrule (1) or (2), the Court may make such orders as the Court thinks fit.

Copying produced documents

“8. (1) The applicant for a notice for non-party production, or his or her solicitor, may copy at the applicant's expense any document produced in compliance with the notice unless the respondent to the notice objects.

“(2) If the respondent to a notice for non-party production objects to a document produced in compliance with the notice being copied, the applicant for the notice may apply to the Court for a determination in relation to the objection.

“(3) On an application under subrule (2), the Court may make such orders as the Court thinks fit.

Costs

“9. (1) Any expenses reasonably incurred by the respondent to a notice for non-party production in complying with the notice shall be borne by the applicant for the notice.

“(2) If the respondent to a notice for non-party production has not received an amount that he or she considers adequate to compensate for the expenses reasonably incurred, or expected to be reasonably incurred, in complying with the notice, the respondent may, after having given the applicant for the notice not less than 7 days notice of his or her intention to do so, apply in writing to the taxing officer to determine the amount that is sufficient to compensate for those expenses.

“(3) Upon the taxing officer determining an amount for the purpose of subrule (2), the applicant for the notice for non-party production shall pay that amount to the respondent to the notice.

“(4) A determination for the purpose of subrule (3) shall be deemed to be a judgment of the Court for the amount determined against the applicant for the notice for non-party production and may be enforced accordingly.

“(5) Subrule (1) does not affect the discretion of the Court to order that the costs of and incidental to an application for a notice for non-party production (including any amount paid to the respondent to the notice pursuant to that subrule) are to be paid by any other party to the action.”.

Repeal