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BSA 2023 § 166 — Giving, as evidence, of document called for and produced on notice

§ SECTION 166 · BSA 2023 · CHAPTER X — OF EXAMINATION OF WITNESSES

Giving, as evidence, of document called for and produced on notice

Inspect it and you may be bound by it. If a party who gave notice to produce calls for a document, and inspects it once produced, the producing party may require him to give it as evidence.

How to read Section 166

Call for a noticed document and inspect it, and the other side can make you put it in evidence — you cannot look and then quietly drop it.

The call & inspection

A party gives notice to produce, calls for the document, and inspects it once produced.

The producer’s option

The party who produced the document may require the caller to tender it.

Bound to give it

Then the caller is bound to give the document as evidence.

The bare Act

The section in its own words — a single rule with three steps.

Section 166 · verbatim

When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

In short: a party who has served a notice to produce may call for the document at trial. If the other side then produces it and the calling party inspects it, a consequence follows: the producing party may require the caller to give the document in evidence — and, once required, he is bound to do so. The mischief the rule prevents is tactical peeking. Without it, a party could demand his opponent’s document, read it to see whether it helped him, and then quietly drop it if it did not — having gained a free look at the other side’s papers with no risk. So the section makes the inspection the turning-point: once you have called for and examined the produced document, the other party holds the option to put it in. Note whose choice it is — not the caller’s, but the producing party’s: it is he who may require the caller to tender it. The provision keeps document-production fair, discouraging one-sided fishing through an adversary’s papers.

→ This carries forward IEA 1872 § 164 — inspecting a document produced on notice may bind the caller to give it in evidence.

Glossary

notice to produce

A formal demand that the other party bring a document at trial.

calls for a document

Asks that the noticed document be produced.

produced and inspected

The document is brought out and the calling party examines it.

the party producing it

The party who brought out the document on the notice.

bound to give it as evidence

Obliged to tender the document — at the producer’s election.

no inspect-then-discard

A party cannot examine the opponent’s document and then drop it if unhelpful.

The picture

Once you call for and inspect the produced document, the other side may hold you to it.

A gave NOTICE TO PRODUCE,calls for the document,and INSPECTS itB (who produced it)may REQUIRE A to tender itthe option is B’s, not A’sA is BOUND to giveit as evidenceno tactical peeking — you cannot read the opponent’s document and then drop itthe inspection is the turning-point; the producing party then holds the optionkeeps document-production fair — discouraging one-sided fishing

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

the ruleCall for it, inspect it — and you can be made to tender it

In one lineIf a party who gave notice to produce calls for a document and inspects it once produced, the producing party may require him to give it in evidence.
1calls for & INSPECTSthe produced document(after notice to produce)2the PRODUCERrequires him togive it in evidence3he is BOUND togive it as evidenceinspection is the trigger; the election is the producing party’s
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production,he called for it and inspected it…the document was produced on his notice and he has examined it.
he is bound to give it as evidence if the party producing it requires him to do so.→ the producer may make him tender itif the producing party requires it, the caller must give the document in evidence.
ExampleP notices D to produce a letter, calls for it at trial, and reads it. Finding it unhelpful, P would rather set it aside — but D may require P to put the letter in evidence, and P is bound to do so.
✗ Not thisThe option is not the caller’s. It is the producing party who may require the document to be tendered — the caller cannot both inspect it and then unilaterally withhold it.

no cherry-pickingStopping a free look at the opponent’s papers

In one lineThe rule prevents a party from demanding, reading, and then dropping the opponent’s document — once inspected, the other side can make him own it.
without § 166:demand → read → drop ifunhelpful — a free lookone-sided fishingwith § 166:inspect it → the other sidemay make you tender itfair, symmetricalthe risk of inspecting is what keeps the process honest
When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.the whole rule — inspection carries a riska party may still choose not to inspect; but if he does, he accepts that the producer may hold him to the document.
ExampleCounsel who is unsure whether a produced document helps may decline to inspect it, keeping his options open. But the moment he examines it, he risks being required to put it in.
✗ Not thisThe section does not force a party to inspect, nor to call for a document at all. It attaches a consequence only to the deliberate act of inspecting a document produced on his own notice.

Connected provisions

§ 165 · back

Production of documents

How a summoned document is produced and its admissibility decided; § 166 is about tendering it in evidence.

§ 167 · next

Document refused on notice

A party who refuses to produce a noticed document cannot later use it — save with consent or the court’s order.

Chapter IX

Of Witnesses

The examination of witnesses and the handling of documents — see the chapter map.

lineage

IEA 1872, § 164

Carried forward — inspecting a document produced on notice may bind the caller to give it in evidence.