The defendants brought a motion to compel further disclosure of electronic information by the plaintiffs. Civil Procedure Rule 16.09(3) requires each party to deliver an affidavit disclosing relevant electronic information. The defendants disclosed almost 70,000 documents, while the plaintiffs disclosed less than 3000 and would not disclose the search criteria they used to compile the documents.
The defendant argued that the parties were obliged to make a good faith effort to use the same search criteria, while the plaintiff argued that they fulfilled their obligations under the Rules. The plaintiff referred to the Sedona Canada Commentary on Proportionality in Electronic Disclosure & Discovery, and case law, noting that a request for further production must be reasonably specific and targeted, with the onus on the requesting party to prove that the specific documents that were not disclosed actually exist. The Court agreed with the plaintiff in this regard but added that the defendant was entitled to know the search parameters used to determine whether they wish to challenge the disclosure.
The Rules, themselves, do not require disclosure of the search parameters but there are other mechanisms, such as writing to the opposing counsel, sending an interrogatory, or questioning at the discovery. Ultimately, the Court determined that the defendant had other avenues to explore the scope of the plaintiff’s disclosure, and an order for further production would be premature.
The defendants also argued that the information contained in the affidavit and schedules was deficient in terms of the specific information required by Rule 16.09(3)(d) regarding electronic information (i.e., date of creation, author, recipient). The plaintiff agreed to provide more information but the Court held that it was not required by the Rules that the type of device on which the data was found or the custodian of the said device be disclosed.
Finally, the defendant wanted to know more about certain deleted e-mail accounts of the defendants. The Court held that something more than a vague statement was required and ordered the plaintiff to provide the date of deletion, the reasons for deletion, and the name of the person who deleted the e-mail accounts.
Ultimately, the Court found that the defendants had not met their onus necessary to justify further production. The plaintiffs were, however, ordered to revise their affidavit to meet the requirements of Rule 16.09(3)(d), and give further details of the deleted e-mail accounts and certain redactions in the productions.
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