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.