Canada: Records Management @ Gowlings: May 16, 2012 - Volume 3, Number 5

Last Updated: May 25 2012

Edited by Louis A. Frapporti and Christopher Purdon

In this issue:

  • Legal Technology
  • News and Articles



Bull v. UPS Inc., No. 10-4339 (3d Cir. Jan. 4, 2012)

Plaintiff employee of defendant suffered injuries on the job, which she immediately reported to the defendant and requested medical attention.  Two weeks passed before she saw the company doctor who restricted her lifting.  A specialist thereafter further reduced the maximum weight she was to lift.  The defendant placed the plaintiff on light duty but at the end of the assignment plaintiff stopped working and began receiving workers' compensation.  Upon her return, the specialist put a permanent weight limit on overhead lifting but did not refer to other types of lifting.  Her supervisor advised her this made it impossible for the defendant to continue her employment and advised that she seek permanent disability.  The plaintiff sought a second opinion from another specialist who advised in a note that the plaintiff was able to lift 5 times the limit imposed by the company specialist.  The defendant disputed numerous aspects of the copied note and requested originals.  At trial, Plaintiff's counsel advised that the original no longer existed, but moments later upon direct questioning by the District Court, the plaintiff advised that the originals were at her home.  The District Court declared a mistrial and invited the Defendant to file a motion for sanctions, which resulted in a dismissal with prejudice on the basis of spoliation.

On appeal, the dismissal was reversed and the cause was remanded for re-trial.  Failure to produce a document can have the same practical effect of destroying it and, under certain circumstances, nonproduction may be characterized as spoliation. Theoretically, producing copies only where originals are requested may constitute spoliation if it would prevent discovery of critical information respecting, for example, the authenticity of the original.  Here, however, there was no spoliation in the nonproduction of the originals. 

In the circumstances, the plaintiff had an objectively foreseeable duty to preserve and turn over originals of the notes: there was fundamental disagreement on the meaning of the notes, plaintiff's counsel asked her on at least one occasion for the originals, defence counsel mentioned at several hearings throughout the proceedings that the originals had not been produced, and the plaintiff was compelled under Rule 1002 of the Federal Rules of Evidence to produce the originals before introducing the documents as evidence at trial.

However, while the originals were in the plaintiff's possession and were relevant to issues in the proceedings, there was no evidence supporting an intentional withholding of such evidence. Bad faith was stated to be pivotal to a spoliation determination and, the burden being on the defendant to prove the plaintiff's conduct was in bad faith, there was no evidentiary basis to favor a finding that the plaintiff lied or obfuscated to intentionally withhold documents from the defendant. The defendant did not make an effective request of the plaintiff to provide the original notes and, accordingly, knowledge of the specific requests could not be imputed to the plaintiff: the first request was not made directly upon the plaintiff and when relayed to her resulted in her seeking only new information or clearer copies, and the second request, which came five days prior to trial purporting to be a trial subpoena, was not properly issued and amounted to nothing more than a reminder that the best evidence rule would apply to the documents at issue.  The defendant's challenges to the authenticity of the notes at summary judgment and during pretrial motions was not enough, without directly pressing the plaintiff for the originals, to put her on notice that the defendant wanted or needed the originals.

The District Court's ruling was also partially ground in its inherent power to sanction the parties' conduct, however, on balance, the decision to dismiss the case constituted an abuse of discretion.  The District Court's decision to dismiss could only be supported on the basis that the defendant had suffered prejudice as a result of the nonproduction – there was no history of dilatoriness or bad faith with respect to the nonproduction, the plaintiff's claims had sufficient merit, and lesser alternative sanctions were available to appropriately remedy the harm caused by the nonproduction.  Prejudice alone may serve as a basis for ordering dismissal in some circumstances where severe impairment to the non-responsible party's case results from non-production, however, this was not the case here and any harm to the defendant's case could be properly reversed by drawing an adverse inference against the plaintiff for failing to produce the originals.

Brown v. Wilkinson, 2012 BCSC 398

This was an application for an order compelling the production of documents which, in part, were subject to claims of privilege.

The case involved a house fire which allegedly spread to and damaged a neighbouring property.  A professional fire investigator hired by the plaintiff concluded that the fire had travelled from the defendant's home to the plaintiff's.  However, the investigator was denied access to the defendant's home by the defendant's insurer.  As a result of the refusal, the plaintiff's insurer wrote to the defendant's insurer advising of a probable subrogated claim and requested that all physical evidence be preserved for investigation.  Despite the letter, the physical evidence was later removed, destroyed or otherwise made unavailable for inspection. 

The plaintiffs argued the subject documents were not privileged and, in the alternative, that there had been spoliation or the likelihood of spoliation such that fairness and equity require any alleged privileges be waived.  By contrast, the defendants argued the documents were created for the purpose of obtaining legal advice and/or had litigation as the dominant purpose for their creation.

After noting the distinctions between solicitor-client and litigation privilege, the court noted that, concerning documents sent to counsel for submission to an insurer, that the vague presence of counsel does not by any means establish solicitor-client privilege.  The court stated that each document is to be judged on its own, and the party claiming the privilege must establish it on the balance of probabilities.  The court was particularly concerned with counsel in this case being used as a shield, deflecting any request for access simply by his or her general or background presence.  Accordingly, the solicitor-client privilege claims were found to be unfounded with respect to many documents.

Regarding litigation-privilege, the court noted the requirements that there must have been a reasonable prospect of litigation and that the litigation was the dominant purpose of the creation of the document.  In the specific context of the insurance industry, it was noted that practically every claim could result in litigation.  The court therefore preferred a reasonable person approach to the requisite test.  In the specific context, it was noted that the documents obtained from fact-gathering could serve a dual purpose of negotiating a claim or defending a suit.  The court found that there was no evidence that negotiations were bound to fail and that facts gathered would therefore not aid in negotiations.  The dominant purpose therefore could not be said to be litigation and the claims failed in that respect. 

Perhaps most importantly, notwithstanding the rejection of the alleged privilege claims, the court agreed with the plaintiff that if spoliation had occurred as a result of the defendant's conduct, the interests of justice required the waiving of the privilege with respect to certain documents.  The court specifically noted the clear and emphatic language in the preservation letter and the consequences (or lack thereof) of writing the letter.  Denying access to the property was held not to be a trivial matter and, at the very least, the evidence should have been preserved.  The court noted the removal of the physical evidence without allowing the plaintiff an opportunity to inspect resulted in such an obvious imbalance that justice required the production of the communications and documents over which privilege was claimed. 

Both the timing of sending and unequivocal language contained in the letter were therefore critical to the courts determination regarding the waiving of any privilege that may have attached to the documents in question.


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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