Hot Off the Bench: Master McLeod on “Living, Breathing Discovery Plans” and The Court as Last Resort (Part II)
Despite discovery plans entering our legal vernacular in January of 2010 with the Ontario rule amendments, they are still not utilized consistently.
In Kaymar v. Champlain CCAC, 2013 ONSC 1754, (which involved a dispute about various privilege claims), Master McLeod took the opportunity to comment on the discovery plan produced in the case. His commentary provides guidance to discovery plans generally. First, he provided his view that these plans should be flexible. “In a perfect world, the discovery plan would be a living breathing process, modified, adapted and updated as necessary.” (para. 37).
He further expressed his preference that discovery plans should contain a “sophisticated, non adversarial process” for dispute resolution. Although acknowledging the central role of courts in adjudicating disputes and supervising the discovery phase of cases, he stated:
A well-crafted plan should minimize the need for court intervention and utilize adversarial adjudication as a last resort. A contested motion with court inspection of disputed documents is inherently a cumbersome and expensive way to resolve discovery disputes. (para. 38)
What can we take away from this case?
1. Courts want counsel to deal with discovery issues to the greatest extent possible (the mandated discovery plan was our first clue);
2. Ensure your discovery plan is flexible. Continue to revisit it as required;
3. Proactively include a suitable dispute resolution process in your plan that minimizes cost and burden for the parties and the court (similar to a prenuptual agreement, develop the remedies prior to the disputes occurring);
4. Don’t run to the court for all of your disputes. Exhaust other available remedies first. Use the court as a last resort.