Rule 5.546.Prehearing discovery

The rule opens by telling the reader how to read it: liberally, in favour of informal disclosures, subject to a party’s right to show privilege or other good cause not to disclose.

Two duties arise without any request. After the petition is filed, the petitioner must promptly deliver or make accessible the police, arrest and crime reports, omitting privileged information only with simultaneous notice of the omission. And the petitioner must disclose any evidence or information in its possession or control favourable to the child, parent, or guardian.

On timely request, eight further categories follow: probation reports, records of statements by the child, parent, guardian or any alleged coparticipant, names and addresses of witnesses interviewed, records of their statements, expert reports including examination and test results, photographs and physical evidence, and records of prior felony convictions of intended witnesses. In dependency, the parent or guardian owes a reciprocal duty on request.

Where disclosure is refused, the requesting party may move for an order, specifically designating the items, stating their relevance, and stating that a timely request was made and refused. Protective orders and excision are available on a showing of privilege or good cause — with excised material sealed and preserved for review on appeal, and everything a party is entitled to disclosed in time for counsel to make beneficial use of it.

Non-compliance carries a range of sanctions: ordering the discovery, a continuance, excluding the undisclosed material, dismissing the proceedings, or any other just order. The duty is continuing — newly discovered material must be notified promptly.