Delivered at the 48th AIJA Congress, Charleston, South
Carolina (August 24-28, 2010)
The Smoking Gun: You will Know the Facts of the
Case Before You Enter the Courtroom.
Evidentiary surprises in the form of last-minute documentary
disclosure are frowned upon and generally inadmissible. Knowing the
evidence of your case in advance allows you to make an informed
analysis and appropriate recommendation to your client.
This is not a Guessing
Game. Producing relevant documents is an
entrenched and automatic obligation of all parties. Good or bad,
significant or not, all relevant documents must be produced. No
motion is required and the parties do not have to guess whether
documents exist. No list of documents is needed in the hope of
requesting the right documents.
The Vanishing Document: If the Document Previously
Existed in the Party's Possession, Power or Control, its
Existence must be Disclosed. Each party
is obligated to prepare an affidavit of documents, listing and
describing all relevant documents. The affidavit of documents also
sets out relevant documents that were formerly in the party's
possession, power or control, together with a statement as to their
Hide. If none of the parties have the
relevant document in their possession, power or control, the court
may, on motion by a party, order production for inspection of a
document that is in the possession of a third party. The document
must be relevant to a material issue in the action and it must be
that it would be unfair to require the moving party to proceed to
trial without having discovery of the document.
The Shredder is not an
Option. Parties must preserve documents.
To this end, it is good practice to provide the opposing party with
a litigation hold letter, putting your opponent on notice of this
obligation. If the opposing party fails to preserve the documents,
there may be sanctions, such as the drawing of an adverse inference
related to the reason for the missing document or a further cause
of action for the tort of spoliation.
The Principle of Proportionality: There are
Reasonable Limits. Although relevant
documents in a party's possession, power or control must be
produced, this duty is informed by the principle of
proportionality. A $25,000 lawsuit does not warrant disclosure of
every single relevant document where the costs of such disclosure
are disproportionate to the amount at issue in the lawsuit. The
court will consider the probative value of such documents versus
the costs associated with their production.
Ontario has Advanced Rules of Electronic
Discovery. Electronic documents are now at
the forefront of all litigation. This requires advanced rules of
electronic discovery. Ontario has adopted the Ontario
Guidelines and The Sedona Canada Principles, which
provide best practices and outline the requirements for the scope
and process of electronic discovery. These processes must be
considered when preparing a discovery plan and schedule.
Trade Secrets can be
Protected. There is no need to reveal
your trade secrets to a competitor. It is possible to obtain a
confidentiality order that allows confidential and sensitive
documents to be protected from competitors. This avenue, which must
be obtained by way of a motion, provides protection against
opponents who are on a fishing expedition to discover your
client's business secrets.
This is not a Free Ride.
Large, document-intensive files are costly and burdensome. Costs
awards and possibly costs shifting prior to documentary disclosure
impose consequences on the loser or on a party making excessive
An Ontario Judgment is not an Empty
Judgment. Canada has reciprocal
enforcement of judgment legislation, which helps enforce foreign
judgments in Canada. Although you will need to check your own
jurisdiction to understand how an Ontario judgment is enforceable
in your country, Canada is a signatory to the Hague Convention
of 1965 on notification and service of judicial documents and
the Convention between Canada and the United Kingdom of Great
Britain and Northern Ireland Providing for the Reciprocal
Recognition and Enforcement of Judgments in Civil and Commercial
Matters. Absent extraordinary circumstances, Canadian
judgments are also recognized in the United States.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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