The case law continues to build under Ontario’s new Rules of Civil Procedure. Courts appear to see the appeal of not only the amendments themselves, but of the basic principles underlying those involved in discovery, proportionality and reasonableness in particular.
These basic principles (in part) formed the subject matter of the recent appeal case of Wahid v. Malinovski, 2010, ONSC CanLII 3249, decided on July 7, 2010. The court was asked to overturn the order of a Master who had ordered Wahid to provide a further Affidavit of Documents and to produce certain relevant document by a determined date. The main grounds for the appeal were that the Master misapplied Rule 29.01, that she failed to apply the “purpose and spirit of the new Rules”, that she misapprehended the evidence regarding the relevance of the requested documents, and lastly, that she failed to exercise her discretion judicially in granting an award of costs.
The court dismissed the appeal in its entirety.
The value of this case?
In its decision, the court confirms that the amendments to the Rules do not negate pre-existing discovery obligations or judicial discretion.
Pursuant to Rule 30.04(5), the court may at any time order production of unprivileged, relevant documents in the possession, control or power of a party…[n]one of the new Rules amendments hamstring the court’s discretion under Rule 30.04(5) to order production of documents for discovery. (para. 11)
Further, the basic principles of fairness and efficiency in litigation, and the doctrine of proportionality continue to be endorsed by courts:
Discovery is to facilitate settlement or, if that is not achievable, to make the trial process more efficient and fair. Concerns about discoveries being unduly long and costly, sometimes turning into fishing expeditions, have stewed in recent years: see Osborne Report at 59. New provisions were added and certain provisions of the Rules were amended…to streamline the discovery process.” (para. 6)
Rule 29.2.03 sets out a list of factors to be considered by a court when ordering production of unprivileged, relevant documents in the possession control or power of a party (including time, expense, prejudice, undue interference with the orderly progress of the action, availability of the information or record)…underpinning all of the factors listed in the Rule is the overriding principle of proportionality. (para. 9)
When making proportionality arguments in the discovery context our Courts are now requiring the details and they are willing to order litigants to provide them.
In the very recent case of Guestlogix v. Hayter, 2010 ONSC 4384 (CanLII), Guestlogix Inc. brought a motion compelling Hayter to provide electronic versions of previously-produced documents. Justice D.M. Brown required that the parties deliver supplementary materials, both evidence and statements of law, detailing the requested format of production, the reasons why Guestlogix required production in that format, and any undue burden imposed on Hayter to produce the data in that format. Brown J. expressly endorsed the doctrine of proportionality in providing the following directions:
The parties must appreciate that my consideration of the request will be informed by the general principle of proportionality (Rule 1.04 (1.1)), as well as the more specific principles of proportionality applied to electronic discovery through the Sedona Canada principles (Rule 29.1.03(4)). Their materials should address those principles.
In a supplemental endorsement, Brown J. continued:
To those requirements, I add the requirement that the plaintiff serve and file a Proportionality Chart – Document Production, in the format set out by the Ontario E-Discovery Implementation Committee, and the defendants serve and file a responding chart.
The Ontario E-Discovery Implementation Committee precedents, located on the OBA website, continue to be excellent resources for counsel. It is interesting to see courts not only turning to them as precedents, but ordering their use by parties.
For assistance in drafting or arguing specialized motion materials on proportionality, cost-shifting, defensibility of search terms and other filters, and all other production issues, call Wortzman Nickle. We know that the success of your motion is in the details.
Recently, Master Short of the Ontario Superior Court of Justice canvassed the present state of litigation document management software and the potential difficulties that must be overcome by counsel working co-operatively.
In Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT,  O.J. No. 2718, the defendant Ercros moved for a further and better affidavit of documents, including a particularized privilege schedule, and production of all relevant documents in the power, possession and control of the plaintiff, Apotex.
Apotex moved for assistance in the particularization and the provision of enhanced electronic access to Ercros’ productions. Apotex alleged that the DVD originally produced by Ercros did not sufficiently describe its documents and further, that Apotex had experienced difficulty in retrieving specific documents from it. Ercros then produced its documents in a Summation Briefcase to allow Apotex to import the documents directly into its own document management software. Apotex took the position that was insufficient.
Master Short favoured Ercros, citing the new Rules of Civil Procedure, The Sedona Canada Principles®, and the test for proportionality. Ercros was granted the relief sought, while Apotex’s motion was dismissed. The provision of the Summation Briefcase was deemed sufficient in that Apotex had no further difficulties accessing the Ercros productions.
Lessons Learned (and to be learned)
Noting that “there are lessons to be learned by the profession on how to deal with what are clearly problems that are contributed to by enhanced modern computing power and software”, Master Short commented favourably on counsel’s efforts in this case to fashion a sensible solution to the problems encountered. The use of electronic production to gain tactical advantage was discouraged:
The requirement, in part arising from the “equality of arms” component of proportionality, does not mean that a party need provide a computer system to their opponents, but they do need to work together to facilitate the exchange of information and a practical production and exchange of the “bibliographic data” attached to their productions.” (para. 71)
What does this case mean?
This case stands for a number of interesting and useful discovery propositions, including: