"Discovery" of documents is one of the most crucial steps in any lawsuit. Much useful information can be learned from documents. Each party to a lawsuit must produce all relevant documents and each party’s lawyer has an ethical obligation to ensure that the production is complete.
This booklet is intended to provide you with an outline of the obligations of the parties and their lawyers throughout the document discovery process.
WHEN DOES DOCUMENT DISCOVERY START?
Document discovery occurs once the pleadings have been filed and served. The Rules of Court allow a party to issue a formal "Demand for Discovery of Documents" and the other party is then required to deliver a "List of Documents" within 21 days. Each party receiving a Demand for Discovery of Documents is under the same obligation to deliver a List of Documents.
WHAT IS A LIST OF DOCUMENTS?
The List of Documents simply sets out and briefly describes the documents that are relevant to the litigation. It contains the following three separate parts:
Part I: relevant documents which the party is prepared to produce to the other side for inspection and/or copying;
Part II: relevant documents which used to be, but which are no longer in the possession or control of the party (i.e. destroyed or lost documents, originals of correspondence forwarded to others, etc.); and
Part III: relevant documents the production of which is being refused on grounds of privilege (i.e. documents relating to legal advice, etc.).
You will not be required to determine in what category each of your documents fall. Produce everything! We will make that determination for you as we prepare your List of Documents.
WHAT DOCUMENTS MUST BE PRODUCED?
The Rules of Court require that parties, through their counsel, disclose the existence of all documents:
"that are or have been in the party’s possession or control relating to every matter in question in the action enumerating the documents in a convenient order with a short description of the documents".
"Matters in question" in the action are contained in the pleadings, i.e. the Statement of Claim, Statement of Defence, Third Party Notice and Counterclaim. Basically, they consist of the parties' allegations about what happened or did not happen, about the condition or state that people or things were in at any given time, about what people said, knew, or did, or did not say, know or do, and so on. We will review the pleadings with you to help identify the issues and the documents that are relevant.
It is also necessary that you inform us of any documents which may have been at some time but are no longer in your possession (e.g. documents which have been sent to other people, or have been destroyed, etc.) and where they are now.
The Rules of Court do not require us to show privileged documents to the other side, but they do require us to disclose their existence. The classification of a document as "privileged" involves complex questions of law and must be made by us as your lawyers.
Even if the document is unfavourable, it must be disclosed.
If there are documents which you think are particularly sensitive, please contact us to discuss their disclosure.
WHAT IS CONSIDERED A DOCUMENT?
The definition of "document" in the Rules of Court is very broad and includes the original and every copy, if those copies contain notes or are in any other way different from the original of the following:
letters or memoranda,
notes of telephone conversations,
diaries, calendars, day timers,
inter-branch communications (both branch and head office copies),
ledger cards or account statements for loans pertaining to any party who has any relation to the claim,
all security documents (debentures, guarantees, promissory notes, etc.),
the security register, account agreements with any party who has any relation to the claim,
manager's notes or rough drafts with respect to any of the above,
photographs, drawings, plans, any notes scribbled on any of the above and other such records.
Electronic documents must also be produced. Electronic documents include items such as email, files on your hard drive, iPods, PDAs, BlackBerries, voicemail messages, text messages on cell phones, back-up tapes, security records and jump drives. While each of these types of documents provide a unique challenge to produce, the one that will almost universally affect parties is email.
Email might have to be produced for one of two reasons:
Content: Similar to a letter or other more “traditional” documents, the content of the email may relate to a matter in question; and
Transmission: The fact that the email was sent, the date it was sent or received, who sent it, and who received it (the "Metadata") may be a matter in question.
In most cases, email needs to be produced because of content. At other times, it is the Metadata that is relevant. If the Metadata may be relevant, please contact us to discuss the most appropriate manner of providing those documents to us before you arrange to have them copied.
Please produce the original documents. Keep the originals intact. The collected documents should then be forwarded to us for our determination as to relevance. Should the documents prove to be very numerous, contact us, and we will make arrangements for someone to come and review them.
CONFIDENTIALITY
Documents produced in the discovery process are subject to an implied condition of confidentiality. This means that the other party in the lawsuit can’t use those documents other than for the lawsuit in which they are produced. Even if the documents are referred to in Court, the documents themselves are still subject to this principle of confidentiality.
If you have any concerns about sensitive business records, such as trade secrets, please contact us to discuss it, as in certain circumstances, we may be able to obtain a Court order that imposes certain restrictions on the use and disclosure of those documents.
ONGOING OBLIGATION TO DISCLOSE
The duty to list documents extends to all documents which come into your possession until the time the trial has completed. Documents such as minutes of meetings or bank statements are the types of documents which will require ongoing disclosure as new minutes are prepared and bank statements are received. It is important that you immediately advise us of any relevant documents which come into your possession in the future.
CONSEQUENCES FOR FAILURE TO PROVIDE A DOCUMENT
If all documents are not forwarded when the request is first made, this may result in lost time, money and effort. For example, if a List of Documents is not produced in a timely manner, the party requesting the List of Documents could bring a Court application seeking an Order requiring you to prepare a List of Documents within a specific period of time.
Also, certain types of cases require certain types of documents to be produced. For example, in a contract dispute, the contract must be produced; in construction deficiency disputes, the designs and specifications must be provided. As a result, if all of the relevant documents are not provided, the other party could bring a Court application seeking an Order requiring an Affidavit verifying the List of Documents or requiring that certain documents be produced. This is done to ensure that you have produced every single document that might be relevant. Obviously, all these Court applications will result in increasing the cost of litigation. In addition, it will require us to divert our energy from developing strategies for your case in order to deal with the applications.
If documents which are now in your possession surface later, the Court may take the view that you were wilfully concealing them, and if their existence is not disclosed now, they may not be admitted at trial, or you may be subject to pay costs to the other party.
APPLICATIONS TO RESOLVE DISPUTES
If disputes arise respecting the document discovery process, it may be necessary to seek the assistance or advice of the Court. This is done by bringing an "interlocutory application". Such applications will be necessary when a party fails or refuses to comply with the Rules of Court or should a dispute arise among the parties regarding the scope of document discovery to be made.
Applications are brought by filing with the Court a Notice of Motion, a document that outlines the relief being sought, along with an Affidavit and, in some instances, a written argument. The Affidavit sets out the facts upon which the application is based, and must be sworn or affirmed by a person with knowledge of the facts.
Once the materials are filed, there will be an oral hearing before a master or judge of the Court. The length of time required for the hearing will, of course, depend upon the complexity of the application. Following the hearing, the master or judge will render a decision and grant an Order.
The following are some types of applications that may be brought to ensure compliance with the Rules of Court:
Produce a List of Documents;
Produce certain types of documents;
Provide an Affidavit verifying the completeness of a List of Documents;
Produce a List of Documents that provides a better description of the documents in accordance with the Rules of Court;
Challenge whether documents that are listed as privileged are actually privileged; and
Confidentiality Orders.
IN SUMMARY
This booklet provides an overview to help you through the document discovery process. If the Rules of Court are not followed, or if documents are missed, the consequences can be grave and could impact the costs and/or outcome of the lawsuit. As a result, it is important that the document discovery process be completed thoroughly. Should you have any questions, please contact us.
