The Other Side Is Withholding Documents in Your DIFC Case

A DIFC document production request can seek relevant records held by the other side, including emails and electronic messages. If the response is inadequate, the court can order production or a defined search. It does not follow that missing documents automatically entitle you to judgment.

Start with a short schedule that identifies what is missing, why it matters to a pleaded issue and why the opponent should have it. This guide concerns evidence in an existing DIFC Court of First Instance claim. It is not a route for investigating a debtor's assets after judgment or a general right to inspect a company because you own shares.

What should your DIFC document production request identify?

Request component	Useful detail	Weak substitute
Record or narrow category	Approval emails for the disputed variation during the identified month	All documents about the project
Issue in the case	Whether the instruction was approved before work started	It may help us
Reason for opponent's control	Their project manager referred to the approval chain	They must have something
Your own position	You were not included in the internal circulation	No explanation of your own records
Search proposal	Identified custodians, dates and transaction reference	Search every device ever used

RDC 28.17 requires an identifiable document or a narrow, specific category reasonably believed to exist. The request must explain relevance and materiality, the reason for believing the opponent has possession, custody or control, and why the requesting party lacks the documents or would face an unreasonable burden producing them. The Schedule A format helps the court compare each request with the answer.

In the hypothetical variation dispute above, connect the request to the paragraph alleging authority to approve the extra work. State the date of the instruction and the name or role used in existing correspondence. You need not know the precise subject line of an internal email you have never seen. You do need a reasoned description that can be searched and evaluated.

Keep requests separate where their purposes differ. One category may concern authorisation, another delivery and another payment. Combining all three into a demand for every project document makes an objection to one category harder to isolate and a narrow production order harder to draft.

Check what was due before alleging concealment

Compare the production against the actual timetable and request, rather than the volume you expected to receive. Standard production under RDC 28.15 concerns available documents relied upon and documents required by law, rule or practice direction. The subsequent request process is important. Do not assume that the first bundle must contain every adverse document imaginable.

Collect the case-management order, your schedule, the response schedule, any agreed search parameters and the production statement. Mark each category as produced, objected to, partly answered or unanswered. A blank entry and a reasoned privilege objection are different problems. Your next application should acknowledge that difference.

Documents mentioned in a statement of case, witness statement, witness summary or affidavit have a specific inspection route under RDC 28.5 and 28.6. An expert's report is addressed separately by RDC 28.7 to 28.9. If the opponent's own witness relies on a dated meeting record, begin with that identifiable record rather than a speculative category extending across several years.

The following distinctions help turn a large production into a manageable review.

An email referring to an attachment and a production without that attachment create a precise question. They do not establish what the attachment said. Keep that distinction visible in the correspondence and eventual witness evidence.

Ask how electronic records were searched

The definition of a document in RDC 28.1 and 28.2 includes electronic communications, databases, backups, deleted electronic documents and metadata. That does not mean every dispute justifies forensic examination of every device. The rules also require attention to reasonable search, burden and proportionality.

RDC 28.10 expects early discussion of electronic preservation and search issues. RDC 28.19 permits a request, or court direction, identifying files, terms, individuals or another efficient means of searching. Explain why your proposed custodian probably dealt with the transaction. A finance employee may hold payment records but know little about a site instruction issued by an engineer.

Ask whether the search covered attachments, shared drives and business messaging where those sources are relevant. If the answer relies on a keyword exercise, test the proposed terms against documents already held. A project code used internally may find records that the customer's trading name misses. These are practical search questions, not an entitlement to dictate an unrestricted technical investigation.

RDC 28.21 identifies factors including volume, complexity, accessibility, retrieval expense and the significance of likely results. Under RDC 28.23 and 28.24, parties should seek agreement on electronic search parameters and, where possible, bring disagreements to the court before costly searches occur. The rule allows costs consequences for failures to engage with that process.

Preserve your own relevant records while challenging the other side's search. Do not delete duplicate-looking files, alter message exports or remove metadata to make the bundle tidier. Give your representatives the originals and explain how the working copies were created. This is a document-handling recommendation, not a substitute for a preservation direction tailored to the case.

Which objections can the opponent properly raise?

RDC 28.28 recognises grounds including insufficient relevance or materiality, privilege, unreasonable burden, demonstrated loss or destruction, compelling confidentiality and compelling considerations of proportionality or fairness. An objection is not automatically valid because the document is labelled confidential. Equally, an important document is not automatically producible despite a properly established privilege.

Written objections should identify their basis. RDC 28.29 requires a person claiming a right or duty to withhold a document or part of it to state that claim and its grounds in writing. The court can determine whether the claim should be upheld. Avoid demanding disclosure of the privileged advice itself merely to test whether privilege exists.

Where cost is the issue, consider a narrower date range, fewer custodians or staged production. Under RDC 28.46, the parties may agree in writing, or the court may direct, that production happens in stages. A sensible first stage can show whether the disputed system contains useful records before a much larger retrieval exercise is considered.

If destruction is asserted, ask when it happened, under what retention policy, what systems were affected and whether copies survive elsewhere. RDC 28.39 permits an order identifying records no longer controlled and explaining what happened to them. Do not jump from an unexplained absence to a public allegation of deliberate destruction.

Build an application the court can actually decide

RDC 28.36 permits an application for a Document Production Order where an objection is unjustified, a reasonable requested search has not been carried out, or responsive documents have otherwise not been produced without objection. The supporting schedule should let the judge decide individual categories rather than reconstruct months of correspondence.

1. Identify the live issue and the precise requested category using the existing pleadings and timetable.
2. Set out the opponent's answer fairly, attaching the relevant production and correspondence.
3. Explain the defect with concrete examples, including missing attachments or unexplained date gaps.
4. Propose the document, search or explanation sought, together with a workable compliance date.
5. Address burden, confidentiality and any alternative way to obtain the material.
6. Explain the effect on witness statements, expert work and the trial timetable.

The available order can require specified documents, a defined search, production of records found and an explanation for documents no longer controlled. Compliance is verified through the production statement process in RDC 28.42 to 28.44. For an organisation, the statement identifies its maker and explains why that person is appropriate.

Offer a draft that matches the evidence. An order to search one custodian's project folder is different from an order to restore a decommissioned server. If technical work is sought, obtain enough information to explain its likely scope and practical impact. Do not promise a completion date simply because it would fit your preferred hearing timetable.

Does withholding documents mean you win?

No. The court's response depends on the breach, its effect on a fair trial and the remedy needed. In Access Group and Proex v BLS International, CFI 091/2023, judgment of 12 November 2025, paragraphs 66 to 73, the court found substantial disclosure failures but refused to strike out the defence.

The court considered that issue-specific adverse inferences could protect the fairness of the trial. It also recognised that legal defences might remain unaffected by the missing documents. The central termination and lost-profit claims ultimately failed. That outcome matters: a serious production breach and success on the underlying contract claim are separate questions.

Key takeaway. Identify the particular factual inference a missing document supports. A disclosure complaint is not a replacement for proving the legal elements of your claim.

The judgment treated striking out as a last resort, assessed through justice and proportionality. It cited Vision Construction v Banque Misr, decision of 5 December 2023, among the procedural authorities. Neither decision provides immunity for disobedience. Both require attention to the actual proceedings and the remedy proportionate to the failure.

Prepare an inference schedule if that remedy is sought. Identify the issue, why the record should exist, the demonstrated production failure and the inference proposed. Explain the surrounding evidence supporting that inference. Do not ask the court to assume every disputed fact in your favour because one search was defective.

Keep using the material within the permitted purpose

Receiving a document in litigation does not ordinarily license its use for a separate commercial campaign. RDC 28.64 limits use to the proceedings, subject to specified exceptions including permission and qualifying public-hearing use. RDC 28.65 allows restrictions even where a document has been referred to publicly. Check any confidentiality or use order before sharing material outside the case team.

The duty to respond to requests and orders also continues under RDC 28.45. Further responsive documents coming into a party's possession require notification and production or a proper objection, subject to the rule's exception for an applicable unchallenged or upheld objection. Treat a later discovery as a compliance event, not something to leave until the witness is cross-examined.

These three records should remain current as the case develops.

Common mistake. Demanding every company record while ignoring the pleaded issue makes the request harder to defend. Ask for what can resolve a material question and explain the connection.

Before the next case-management hearing, reduce the remaining dispute to a clean schedule and a proposed order. The useful question is what evidence the court still needs for a fair determination, not whose document bundle contains more pages.

Sources checked on 29 September 2026. Case-specific directions and later rule changes must be checked before taking a procedural step.

Frequently Asked Questions

Can I ask for internal emails I have never seen? Yes, a narrow category reasonably believed to exist can be requested. Explain its relevance, materiality and the reason for believing the opponent controls it.

Does document production include WhatsApp messages? Electronic communications fall within the document definition. The particular search must still be relevant, proportionate and within the applicable request or order.

Can the other side refuse because records are confidential? Confidentiality can support an objection where the court finds it compelling. A confidential label alone does not decide the question.

What if the requested document was deleted? Ask for evidence about the loss, retention policy and search. The court can require identification and an explanation of documents no longer controlled.

Can I demand the opponent's legal advice? Privilege is a recognised ground for withholding production. A disputed privilege claim requires the proper court process, not automatic disclosure of the advice.

Will the defence be struck out for missing documents? Not automatically. The court considers fairness and proportionate remedies, which can include issue-specific adverse inferences instead.

Must later-discovered documents be produced? RDC 28.45 provides a continuing obligation within the request or order, subject to its stated exception for applicable objections.

Can I publish documents received from the opponent? Do not assume so. RDC 28.64 and 28.65 and any confidentiality order must be checked before using produced material outside the proceedings.

This article is for general information and does not constitute legal advice. Consult a qualified advocate about the court order, relevant records and steps required in your case.

Related Guides

Our DIFC Court disputes page covers jurisdiction, service, default judgment and setting aside, immediate judgment, disclosure, costs and appeals under the Rules of the DIFC Courts.

• New Evidence Changes Your DIFC Case: Can You Amend the Claim?
• Your Lawyer's Advice Email Was Disclosed in a DIFC Case
• Your Opponent Wants DIFC Judgment Without a Trial: How to Respond