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Going to Court in Malaysia: What is "Discovery" and How Does It Work?

Going to Court in Malaysia: What is "Discovery" and How Does It Work?

Are you facing a court case in Malaysia? If so, you might hear your lawyer talk about a process called discovery.
Discovery is a legal tool. It lets you ask the other side to show you their documents before the trial starts.
A recent Malaysian High Court case (Saville @ Cheras v Dato Yasmeen) reminds us that you cannot just ask for any document you want. The court has very strict rules to keep the process fair.
Here is what you need to know about getting documents for your case.
The Golden Rule: It Must Be Necessary
Many people think they can ask for any document that seems useful or interesting. The High Court made it clear that this is not true.
The court will only order the other side to give you documents if it is absolutely necessary.
  • Necessary means the case cannot be resolved fairly without it.
  • It also means the document will help save time and court costs.
  • Useful or nice to have is not enough.
If you ask for documents just hoping to find something useful, the court will call it a "fishing expedition." Judges do not allow this because it can be used to bully or overwhelm the other side.
The Three Big Questions
Before the court even considers your request, you must satisfy three basic rules. You must prove that:
  1. A real document exists.
  2. The document is relevant to the specific legal fight.
  3. The other side actually has the document in their possession or control.
Even if you pass these three rules, the judge can still say "no" if they feel the document is not truly necessary to decide the case fairly.
The Legal Paperwork Sets the Boundaries
How does the judge decide what is necessary? They look at the pleadings. Pleadings are the official court papers that state your claim and the defense.
Think of the pleadings as the map of the battlefield.
  • If an issue is not written in those papers, it is not part of the battle.
  • You cannot ask for documents that fall outside of that map.
  • The documents must directly connect to the exact arguments you and the other side are fighting about.

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