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The plaintiff in this case brought a motion for a variety of relief, including electronic production, leave to file a fresh as amended statement of claim, leave to conduct further examinations, an order compelling the defendant to deliver a further and better affidavit of documents, an order that the parties each produce their documents in Summation load files, an order that the case be formally managed and an order extending the time within which the action was to be set down.
The defendant brought a cross motion for an order that the plaintiff pay the costs of assembling the electronic production and an order for security for costs as a term of the orders sought by the plaintiff.
Master Sproat agreed that this case should be transferred into formal case management due to the numerous motions and extensive court resources that had been required to that date.
The Master also granted the plaintiff leave to deliver a fresh as amended statement of claim based on the fact that the plaintiff had changed lawyers. Further, Rule 26.01 is mandatory since no prejudice would be done to the defendant that could not be compensated for by costs or an adjournment.
Further time was granted for discoveries based on the Master's broad jurisdiction under Rule 77.04 to extend time as needed. The amount of money at issue, the complexity of the facts, and the voluminous productions required further discovery.
The Master ordered that a further and better affidavit of documents be delivered by the defendants in accordance with a previous order for production. This was to avoid any ambiguity as to whether a particular document was, or was not, produced and the date of production.
With regards to electronic production, there was a disagreement as to what the defendant agreed to produce and in what format, and if some other form of production was necessary. The plaintiff sought an order that the defendant "deliver on a DVD all Summation load files pertaining to relevant documents, with all the functionality of the creator." Since the plaintiff had delivered his documents in this format, and since there were close to 20,000 documents to be delivered by the defendant, the Master found that it was necessary and reasonable for the defendant to deliver its productions in CSV format. This would allow the plaintiff to take advantage of current technology to manage document intensive litigation.
The defendants sought to have the costs of locating, sorting, and coding the extensive productions ($68,000 claimed) shared with the plaintiff. Based on the late timing of this request, the Sedona principles, and the decision in Wilson v. Servier Canada Inc.,  OJ No. 3723 (SCJ), the Master determined that the defendant should bear the costs. Further, it was evident that the electronic search conducted by the defendants turned up significantly more irrelevant than relevant documents. As such, the plaintiff should not have to pay the defendant's costs to review and vet the documents, but only "the reasonable costs of loading and coding those documents determined to be relevant to the issues on the action."
The Master further concluded that there were no costs thrown away arising from the amendment, and that the plaintiff should not be obliged to pay security for costs. The relief sought regarded routine matters that would not ordinarily attract a potentially onerous order for security for costs.
The underlying dispute between the parties was a claim by the plaintiffs for damages and equitable remedies which included a constructive trust over real property and liquor licences. One of the defending parties applied to obtain further particulars, information contained in investigation reports prepared by the plaintiffs, and information about search engine parameters used by the plaintiffs to locate electronic documents.
The defendants sought an order to compel the plaintiffs to provide further and better particulars of the statement of claim. The court stated that although the defendants are entitled to know the case they have to meet, particulars are not intended to encompass disclosure of all the evidence the opposing side intends to lead at trial. However, what should be provided (given the issues of this case) are key dates, meetings, agreements, asset prices, payments and receipts of benefits.
The plaintiffs originally set out in their statement of claim the details of impugned transactions, and relevant dates. Although the plaintiffs may not have produced the facts the defendants believed necessary to prove the allegations pleaded, the plaintiffs were not obliged to produce facts they did not have, nor were they obliged to provide particulars of their claims on a claim-by-claim articulation. As a result, the court concluded (given the pleadings and demands) that the plaintiffs provided sufficient particulars to delineate the issues between the parties.
In addition, the defendants sought facts contained in the privileged reports of investigators retained by the plaintiffs. The plaintiffs refused to produce either tapes of conversation or facts contained in subsequent reports on the basis of litigation privilege.
The tapes requested by the defendants included a recording of the conversation between the investigators and the plaintiffs and did not include the private investigator's notes or analysis of the conversation. As a result, the court concluded that the tapes should be produced because there was no basis for the zone of privacy required for litigation privilege. Both sides already knew the contents of the meeting between the plaintiff and the investigator and therefore the tape was a relevant document that should be produced.
In regards to the facts contained in the reports prepared by the private investigators, the court stated that in Alberta, the prevailing view is that facts gathered by counsel (other than those necessary to particularize the pleadings), are subject to litigation privilege. Therefore, the court concluded that any material facts required to delineate the plaintiff's claim should be disclosed, but that did not mean that the defendants had a right to every piece of information that the plaintiffs' lawyer or investigator gleaned through interviewing witnesses.
Lastly, the defendants asked the court to direct the plaintiffs to disclose the search parameters they used to filter a massive amount of electronic date to identify relevant documents. The court alluded to The Sedona Canada Principles which address search terms. Principle 4 provides that counsel and parties should meet and confer as soon as practicable and on an ongoing basis regarding identification, preservation, collection, review and production of electronically stored information. The court went on to state that although counsel should agree in advance, if they are unable to reach an agreement, each party must fulfill its obligation to produce documents by selecting their own search terms. Search terms chosen by counsel may disclose something about counsel's approach or theory of the case, which has traditionally been subject to litigation privilege. However, the court then stated that disclosure of search terms may be ordered if the applicant can show that document disclosure has been inadequate to date. Therefore, the court concluded that unless the plaintiffs did not meet the minimum threshold of evidence production, they would not be compelled to provide the search terms because although modern rules have favoured greater disclosure, litigation privilege continues to be a cornerstone in the adversarial system.
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Gowlings Records Management Services Group
Gowlings' Records Management Services Group is comprised of lawyers and technical specialists skilled in dealing with paper and digital records, either in the context of pre-claim risk mitigation or as records counsel in complex litigation. Specifically, we offer the following services:
- Pre-claim risk assessment of records management policies and procedures.
- Records management consulting services, including review and analysis of existing policies and procedures, developing recommendations for revisions to policies and procedures, assisting with implementation of revised polices and procedures, and continuing education and audits of implemented records management program to ensure compliance.
- Developing and implementing litigation hold policy and procedure.
- Post-claim records management services, including scanning and coding of paper records, processing and review of electronically stored information, consulting on records management issues throughout litigation process and assisting lawyers with presenting records at hearings.
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