Limiting Access To Evidence: Privacy, Confidentiality, Proportionality And Other Constraints

A key focus of the rules of evidence is on the search for truth. However, before one gets to the stage of applying the rules of evidence, a number of obstacles may impede a party's ability to marshall the evidence itself. Reliable evidence that would assist a trier of fact in finding the truth may not be accessible to a litigant. This is because other legal rules – some linked to the rules of evidence, some altogether separate – forbid or obstruct the collection and use of such evidence, on the basis of public policy objectives unconnected to the search for truth.

This paper discusses three of the principal legal obstacles to accessing and using relevant evidence in the civil litigation context: (1) privacy laws; (2) confidentiality rules; and (3) the principle of proportionality in the discovery process.