Canada: Records Management @ Gowlings: June 18, 2012


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Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665

When the plaintiff obtained images of the defendant's computer hard drives through an Anton Piller order, they, rather than the defendants, were obliged to review the images and include the relevant documents in their affidavit of documents.

The original action had the plaintiff claiming the defendant was trafficking in devices to unlawfully receive satellite television programming signals. When spoliation was anticipated, the court issued an injunction and granted the plaintiff an Anton Piller order. During the execution of the Anton Piller order, a computer forensics company imaged the defendant's computer hard drives and provided full access to the plaintiff. The defendant produced two affidavits of documents during discovery, both of which the plaintiff contended were deficient. To prove that the defendant had not properly searched their original hard drives before producing their affidavit of documents, the plaintiff introduced evidence from the imaged drives and brought this motion to compel production.

Pursuant to Rule 30.03(2) of the Rules of Civil Procedure, a party's affidavit of documents shall list and describe all relevant documents that are in the party's possession, control or power. However, in this case, the plaintiff also had full and unrestricted access to the documents via the imaged hard drive. Therefore, the judge considered the documents to also be "within the power, if not also the possession and control" of the plaintiff. Additionally, the defendant did not claim privilege and had no objections to the production of any of the documents on the hard drive.

The judge, therefore, found that the plaintiff could properly prepare for discovery. And, pursuant to Rule 30.03(2), the Court decided that the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents and dismissed the plaintiff's motion for an order compelling the defendant to produce additional documents. Since the plaintiff had full access to the hard drives, the judge decided they should be the ones to review them.

Winter et al. v. Sherman, Apotex et al., 2010 ONSC 3640

In this production motion, Master Haberman found that while evidence is certainly helpful to show whether the documents sought do or do not exist, the motion itself is not the appropriate forum to consider evidence pertaining to the merits of the case in order to limit production.

The plaintiffs, here, are seeking production, from the defendants, of five groups of documents prior to examinations for discovery. These documents include, from the date of Apotex's incorporation in 1974, financial records, tax returns, all filings and applications to Health Canada regarding all of its products, all lists of Apotex products and all formulations of all products. While the defendants admit that these documents exist, they resist producing them on the grounds that they are not relevant and producing them would be overly onerous.

The underlying action involves the children of the late Louis and Beverly Winter, who had established Empire Companies prior to their deaths, and Louis Winter's nephew, Barry Sherman. Sherman, and fellow defendant Ulster, sought and eventually succeeded in purchasing his uncle's company after his death. Following a number of complex transactions over the years, Sherman eventually became the trustee of various of holding companies that owned a controlling interest in Apotex, one the largest pharmaceutical companies in Canada.

Two sons and the widow of a third son brought this action against the defendants, each claiming an entitlement to 5 percent in ownership interest in Apotex pursuant to an Option Agreement signed by Sherman as a condition of being permitted to buy the business. Their claim is grounded on the assertion that Apotex is the successor to the business, Empire Companies, started by their father. The plaintiffs also claim royalties associated with four chemicals used by Empire Companies or its successors, namely Apotex. The defendants strongly deny Apotex's lineage in Empire Companies and claim they only used one of the four impugned chemicals. Sherman also stressed that the Royalty Agreement ran for 15 years, expiring in 1982, long before this action was commenced.

While the validity of the plaintiff's claim will be determined during summary judgement or trial, Master Haberman found that it was not to be resolved during a motion for production. And as such, it was not open for parties to resist production on the grounds that the opposing side's case is weak.

Therefore, Master Haberman took the pleadings as they were in assessing the relevance of the requested documents. Having concluded that that the financial documents and tax returns would assist the trial judge in assessing the plaintiff's entitlement, Master Haberman ordered their production. However, the production of all such financial documents from Apotex's incorporation was considered excessive and amounted to fishing. So only the current set of each of these documents was ordered.

With regards to the documents associated with the Royalty Agreement, Master Haberman failed to see how all product lists, all formulations and all documents filed with Health Canada would assist either side. Therefore, Master Haberman only ordered the production of those documents related to the four impugned chemicals, and only for the term of the Agreement, from 1967 to 1982.

And finally, on the issue of proportionality, Master Haberman commented that the evidence provided by the defendant was broad, general and vague. It lacked any specifics on which of the tasks would be onerous or costly and provided no time or cost estimate. It was not helpful in the context of the motion and should have been contemplated.

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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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