Canada: Case Law - Corbett v. Corbett; Pace Credit Union, 2011 ONSC 7161

This was a motion to secure compliance with an e-discovery order. Justice Brown ordered the defendants to serve an e-discovery plan no later than April 29, 2011, and produce all documents resulting from execution of that plan by May 27, 2011. The defendants served the e-discovery plan on May 9, 2011 but never produced any documents. The plaintiffs moved for a finding of contempt. In his decision, Brown J. commented extensively on the obligations upon counsel in such circumstances.

Brown J. first cited Rule 29.1.03(4) of the Rules of Civil Procedure and the Sedona Principles in noting that timely communication between counsel is required to develop and implement an e-discovery plan.

In reviewing the correspondence between counsel, Brown J. found that the lawyer for the defendants had consistently failed to respond in a timely fashion to reasonable correspondence from opposing counsel. Citing Rule 6.03(6) of the RCP, Rule 7 of the Principles of Civility for Advocates, and the Sedona Principles, Brown J. reminded the defendants' lawyer of his professional obligations to respond to correspondence in a timely manner. Brown J. also found that the defendants had breached the original order and were unnecessarily delaying the e-discovery.

As a consequence of the foregoing, the court ordered the defendants to comply with the original e-discovery order under a new timeline, failing which the plaintiffs would be permitted to continue with their contempt motion.

L'Abbé v. Allen-Vanguard, 2011 ONSC 4000

This case involved the payout of a $40-million escrow fund following a corporate acquisition. The motions raised some interesting questions about discovery planning, electronic document production and the new putative caps on discovery under recent rule amendments. 

Each party moved for sanctions against the other in their motions and cross motions. The offered shareholders sought costs or other sanctions against the purchaser for repeated breaches of court orders and production obligations. The purchaser, Allen-Vanguard sought costs against the offered shareholders for wasting four days of discovery.

The court began by outlining the principles that counsel should take into account when dealing with large amounts of discovery, especially during e-discovery where voluminous amounts of documents are exchanged by the parties. Among them were those elucidated by the Sedona guidelines. Principle 4 of the Sedona Canada guidelines states that counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information. More importantly, the process is intended to be collaborative. Counsel should seek production and discovery solutions that meet the needs of the litigation, rather than seeking to win arguments about whose proposal is better or more correct.

Rule 29.1 requires a discovery plan and involves procedural collaboration. It is fundamental that parties inform themselves before agreeing to timetables so that the times and volumes of information are accurate. Moreover, this should be an ongoing process. Thus, where a party determines that the scope of its production obligations has changed, it should immediately advise the other side and seek appropriate amendments to the plan and the timetable. Subject to certain exceptions, a timetable may be amended by the parties (without court approval) by agreement in writing, even if the timetable is contained in a court order.

The party having the duty to produce documents has, first and foremost, the duty to determine what potentially relevant documents it has in its possession, power and control, and where they are located. The party then has a duty to discuss the magnitude and scope of the proposed preservation, review and production with the other side. The purchaser in this case was faulted for not having initially and accurately determined the scope of production and the technical requirements of recovering these documents. Armed with this information, both parties then have an obligation to try to agree on the most efficient and cost-effective process of targeting the necessary production. If this information is not provided or is inaccurate, then any plan is doomed to failure.

The object of a discovery agreement is to avoid massive over production on the one hand, and unnecessary delay and expense on the other. It is a benefit to the producing party which will otherwise be required to recover and review all potentially relevant sources of documents and then to review the documents for relevance, privilege and duplication. It is the process of review that is potentially the most time consuming and expensive process. Moreover, in the absence of a process for jointly identifying the target documents, it is then a process that must be repeated by the other party.

Various kinds of agreements are possible. One option would be an agreement to utilize software to review the e-mail archives of various custodians for certain key words. Another agreement might limit initial inquiries to certain custodians. Yet another might focus on documents relating to liability, or to produce documents in relation to other distinct issues before the parties decide whether it makes economic sense to undertake additional searches and review.

Of course an agreement will not always be possible. The producing party will be well served however by transparency regarding its information architecture and its proposed plan to preserve, locate, review and produce documents. Though ultimately it may need to proceed unilaterally in the absence of agreement, it will go a long way to meeting its obligations if the plan proposed is a sound one and it tries in good faith to meet any objections raised by the other side.

On the basis of the analysis above, the court concluded that Allen-Vanguard had not taken its production obligations as seriously as it should have done. There was an absence of informed negotiation because Allen-Vanguard did not itself come to grips with the magnitude of the problem and make ongoing full and specific disclosure concerning its proposed production plan. Allen-Vanguard did not make any significant effort to agree with the offered shareholders on the proper scope of production nor to produce the most obviously relevant documents before searching further. 

The court concluded that the most appropriate sanction would be a modest award of costs against the purchaser pursuant to Rules 3.04 (4) (c) and 60.12 (c) as a consequence of breaching production obligations and failing to meet the times set out in court orders.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions