Proportionality Principle Reduces Scope of Further and Better Affidavit of Documents

Canadian courts continue to apply the proportionality principle to production motions to limit “fishing expeditions” and rein in production costs. In Murphy_v._Bank_of_Nova_Scotia_2013_N.B.J..pdf, the court significantly narrowed the scope of the requested production when it ordered the defendant to provide a further and better affidavit of documents. In doing so, the court discussed proportionality principles at length. It found the plaintiffs’ request extremely broad and based on speculation, not evidence. Reference to a possible “smoking gun” that might exist in one of many emails authored by the defendants’ employees was “way too speculative”. In contrast, the estimated costs for the defendant to retrieve emails for the 46 requested employees would be in excess of $4 million. The burden, cost and delay of the requested production was thus too great when balanced against the speculative possibility of such retrieval yielding unique information that would be valuable to the determination of the issues. The court therefore limited its order to emails to and from only four employees from a very short time period.

​Lessons learned – proportionality is here to stay and don’t go fishing without solid evidence.