12. How can I obtain documents or information before suing, or from a non-party?
Imagine that a company discovers that a major customer contract has been lost in suspicious circumstances. Internal emails suggest that a former employee may have passed confidential pricing information to a competitor, but the company does not yet have enough evidence to decide whether to sue. Some of the key documents appear to be held by the former employee, while other records may be in the hands of a logistics provider, an email platform, or a bank that is not involved in the dispute.
The company faces a practical problem: how can it obtain the documents it needs before starting proceedings, or from someone who is not a party to the intended claim? It cannot simply demand every potentially useful document as a general investigation. Hong Kong civil procedure imposes limits on when and how documents may be obtained, especially before an action has begun or from a third party.
In these situations, several possible routes may be considered. If the proposed respondent is likely to be a party to future proceedings, the company may apply for pre-action discovery. If proceedings have already started but relevant documents are held by a non-party, it may seek non-party discovery. If the company does not yet know the identity of the wrongdoer, or needs information from an innocent intermediary to enable a claim to be brought, it may consider a Norwich Pharmacal order.
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