In Hudson v. ATC Aviation Technical Consultants  O.J. No. 1758, Justice Myers considered an appeal from the Master who ordered that the defendant produce a significant number of documents from a substantial time period. The appellant argued that the production order was disproportionate.
On appeal, Myers J. concluded that the Master’s order was correct and that she properly exercised her discretion to order production balancing the facts that were before her. The court noted that this is a significant case involving the loss of three lives with tens of millions of dollars in damages being claimed. In contrast, there had been no evidence before the Master about whether the information was “conveniently accessible” or any description of the hardship that might be caused by the broad production order.
Case in point. On a Proportionality Motion, it is critical to come to Court armed with the evidence that the Court will need to assess all of the proportionality factors. The Court will need to know how long the production will take, how much will it cost and whether the data is accessible or involves an expensive recovery exercise. All of those factors are critical. Absent the producing party providing evidence as to why the production order is disproportionate, the Court may not accept that a broad production is disproportionate.