Document Discovery: Understanding the Case and Controlling Costs

1. Week 6: Document Discovery UBC LAW 469.002 Civil Procedure: Cameron/Fancourt-Smith VAN01:3259590: v1

2. Introduction • Document discovery: documents from other side to make your case • #1 tool to help lawyer understand the case • Huge costs in time and money in producing documents • Pre-2010 Reform Rules Task Force:  “discovery is a deep, dark pit – everyone must crawl in and only the wealthiest can crawl out”

3. Introduction • Main change in 2010 Rules is focus on proportionality in production, rather than blanket production of all possibly relevant documents • The proportionality principle: Rule 1-3(2) Proportionality (2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to (a) the amount involved in the proceeding, (b) the importance of the issues in dispute, and (c) the complexity of the proceeding.

4. List of documents • Lawyer must collect documents from client, decide what is relevant, irrelevant, and privileged, and provide a list of documents • Rule 7-1(1): List of documents Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (a) prepare a list of documents in Form 22 that lists (i) all documents that are or have been in the party's possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and

5. List of documents • Can list individually or group documents into categories and give a bulk description • e.g. “Acme Ltd. Billing Records: May 2004 to March 2009” • List must provide meaningful, reliable and complete disclosure and aid to retrieving and identifying documents • “Ordered enumeration and some description of all relevant documents”

6. List of documents

7. List of documents

8. List of documents

9. List of documents

10. List of documents • Part 1: no objection: chronological list of producible documents • Part 2: other documents that listing party intends to refer to at trial • Part 3: documents demanded by other side and ordered by the court • Part 4: privileged documents • Rule 7-1(7): Nature of privileged documents to be described The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege

11. List of documents • Even if claiming privilege, must still list the documents under Part 4 • And if you want to use them on discovery or at trial, must produce them • Generally, lawyer-created documents (arguments, chronologies, witness notes, etc.) are not listed, unless they may have to be used at trial (e.g. witness notes)

12. Supplementary list of documents • Rule 7-1(9): Amending the list of documents If, after a list of documents has been served under this rule, (a) it comes to the attention of the party serving it that the list is inaccurate or incomplete, or (b) there comes into the party's possession or control a document that could be used by any party of record at trial to prove or disprove a material fact or any other document to which the party intends to refer at trial, the party must promptly amend the list of documents and serve the amended list of documents on the other parties of record.

13. History of relevance and production • Peruvian Guano: (1882) • Broad: a document must be disclosed where it relates to matters in question and which maydirectly or indirectly enable a party to advance its own case OR damage the producing side’s case • “train of enquiry” test

14. History of relevance and production • Peter Kiewit Sons v. BC Hydro • BC Hydro had disclosed 30,000 documents and had advised a 12-page list of sources of other documents • BC Hydro rejected to disclosing “mountains of documents” that related to other phases of the contract and to other contracts that were not in question

15. History of relevance and production • Chief Justice McEachern did not follow Peruvian Guano • Court ordered every reasonable effort made to enable the Plaintiffs to locate any document that may assist the parties • If Plaintiff wants more extensive search, at Plaintiff’s expense

16. Relevance • Pleadings determine relevance • Parties must start by listing and producing “core documents” that prove or disprove a material fact • Rule 7-1(1): List of documents Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (a) prepare a list of documents in Form 22 that lists (i) all documents that are or have been in the party's possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial.

17. Material facts • Material fact: a fact that is necessary for the plaintiff to prove in order to support his or her right to the judgment of the court • Ask yourself: • What causes of action am I trying to prove? • What are the tests for each cause of action? • What facts do I have to prove under each test for each cause of action?

18. Material facts • A fact may be relevant to an issue at litigation, but it does not necessarily follow that the fact is therefore material. • In order to be material, the fact must be placed in issue on the pleadings such that prove of the fact will itself have legal consequences to the parties (Jones v. Donaghey, 2011 BCCA(Week 5))

19. Material facts • That being said, Rule 7-1 not restricted to production of documents • Initially, each party should also list documents that “do not in themselves prove a material fact. Includes evidence that can assist in proving or disproving material fact” (Biehl v. Strang, 2010 BCSC 1391)

20. New rules: proportionality and production Kaladjian v. Jose • Personal injury case • Defendant pleaded standard plea alleging that the Plaintiff had pre-existing injury • Defendant demanded plaintiff’s MSP and PharmaNet records from past decade • Plaintiff produced clinical records of the Plaintiff’s treating physician from date of accident to present, but refused to produce the MSP report because it could not be used by any party to prove or disprove a material fact

21. Demanding more documents • Davies J. agreed with Plaintiff and dismissed application • “the pleadings continue to govern the determination of issue of relevance in relation to the scope of examination for discovery…and will usually also govern issues concerning initialdisclosure obligation”

22. Demanding more documents Two-step process: 1. Each party first must list and produce all documents that could be used to prove or disprove a material fact (based on pleadings)

23. Demanding more documents 2A. If a party does not believe that the other party has produced all core documents (that could prove or disprove a material fact), applicant must apply under Rules 7-1(10) and 7-1(14) 2B. If a party believes that other side should produce “additional documents” (that is documents that are arguably relevant but not with respect to proving or disproving a material fact), the party must apply under 7-1(11) and 7-1(14) • can get broader document production, closer to broad Peruvian Guano scope

24. Demanding more documents • Practice: • Review opponent's list • Write letter identifying missing categories and demanding production of those documents • If not satisfied with production • Demand letter: show restraint • Make very clear why relevant: cite paragraph in pleadings • Limit dates, persons, files locations • Apply for documents • Apply for affidavit of documents • The relief available to a party who believes a privilege has been improperly claimed is to apply Rule 7-1(20) for the court to review the document • Courts must err on the side of maintaining privilege

25. Demanding more documents • A judge or master assessing an application for more documents will consider: • the proportionality of the request • the efficiency and cost-effectiveness of the request • whether privacy interests are minimally harmed • the relevance and importance of the claimed documents • whether the information contained in the documents can be obtained in other ways • Generally, a party must provide some evidence in support of an application for additional documents, whether the demand is made under Rule 7-1(11) (“additional documents”) or Rule 7-1(18) (“documents not in possession of party”)

26. Fric v. Gershman • Personal injury case • The Plaintiff was a recent law school graduate • The Plaintiff used Facebook for both personal and professional communications • 890 Facebook Friends: have access to the private contents of the Plaintiff’s Facebook profile. • Plaintiff’s Facebook Profile stored 759 photographs and 1 video • Plaintiff herself was in physical possession of approximately 12,000 photographs

27. Fric v. Gershman • Defendant sought order requiring Plaintiff to produce a complete copy of her Facebook Profile website, including all photographs and information related to the photographs, from the date of the motor vehicle injury (18 November 2008) to the date of the court application, as well as copies of her Facebook friends’ comments, as well as all metadata. • On its face, strategic error: Defendant made far too broad and disproportionate a request. Defendant should have at least referred to specific activities that Plaintiff was likely engaged in, that undermined her claim to a serious injury. • Defendant should have also cross-referenced paragraphs in the pleadings to which the photographs would be relevant to proving or disproving a material fact.

28. Fric v. Gershman Court usefully summarizes relevant legal principles governing privacy rights and discovery obligations under the New Rules: • Pleadings continue to govern the determination of issues of relevance in relation to the scope of examination for discovery under the SCCR and will usually also govern issues concerning the initial disclosure obligations of a party under Rule 7-1 if those obligations are challenged under Rule 7‑1(10); • The removal of the Peruvian Guano train of inquiry test of relevance will generally require a defendant to provide some evidence to support an application for additional documents whether demand is made under Rule 7‑1(11) or Rule 7-1(18);

29. Fric v. Gershman • Privacy rights should not be abridged without cogent reasons to do so; • An automobile accident does not amount to an implied waiver of privacy rights; • The scope of document discovery and oral discovery is now different. The scope of examination for discovery under the present Rules remains unchanged and is very broad.

30. Fricv. Gershman Master Bouck: • Start from the pleadings: the bedrock in determining which document/questions are relevant and must be produced/answered: • “In her pleadings, the plaintiff alleges that the accident lead to not only of amenities of life, but also loss of ability and diminished earning capacity …”: para .56 • “How this diminished capacity is measured is yet to be determined. However, the defence fairly argues that a damage award for a young professional’s diminished earning capacity can be very significant. Although plaintiff’s counsel downplays this aspect of the claim, there is no suggestion that the plea is to be withdrawn.”: para. 58

31. Fricv. Gershman • Some of the plaintiff’s Facebook photographs, including those held in the “private” Facebook profile must be produced • Photographs that show the plaintiff in a sporting or physical recreational activity (hiking, scuba diving, curling, dancing) “are relevant in discovering the plaintiff’s physical capacity since the accident”: para. 60 • Plaintiff must produce an amended list of documents which shows her participating in the Law Games the month after the accident and on vacation during the accident • Note: discovery order does not preclude the plaintiff from arguing that some of the produced photos are inadmissible at trial

32. Confidential documents • Generally, no general protection for confidential or sensitive or embarrassing documents • On very rare occasions (e.g. trade secrets litigation), the court will protect • disclosure to counsel or designated expert only: cannot share information with party

33. Confidential documents • At the centre of the new rules is proportionality: courts will often decline to order production because too personal or too much burden

34. Confidential documents • Desgagne: personal photos from hard drive, as well as internet browser history, to invasive of privacy, with little probative value

35. Confidential documents • Tai v. Lam: banking records: too invasive and not sufficiently relevant

36. Electronic document discovery • Illustrates and necessitates new approach to document production • In modern office: • 93% of information created in digital form; • only 7% originally created in paper form • 70% of electronic documents are never printed as hard-copies

37. Electronic document discovery • Under Old Rules wide disclosure orders • Walter Construction (Canada) Ltd. Greater Vancouver Sewage and Drainage District (2003 BCSC): Party may be required to produce everything, including all copies of documents: both electronic and paper. • CIBC World Markets Inc. v. Genuity Capital Markets (2005 Ontario SCJ): Court ordered Genuity to give full access to CIBC’s forensic experts to contents of all computers, BlackBerries, and “other types of similar electronic devices of every nature and kind”, wherever located: at work and at home.

38. Electronic document discovery • British Columbia Supreme Court: Practice Direction (July 1, 2006) • Parties to discuss scope and mode of discovery of electronic documents. • Provide court with protocol for production of electronic documents • Courts have wide powers to make eDiscovery orders 

39. Electronic document discovery Likely future principles (based on 2005 Ontario Guidelines and Sedona Principles): • Proportionality • Balance: • the cost, burden and delay that may be imposed on parties; • the nature and scope of the litigation, the importance of the issues, and the amounts at stake; and • the relevance of the electronic documents, and their importance to the court’s adjudication in a given case • Focus on active data, and any other information that was stored in a manner that anticipated future business use, and that still permits efficient searching and retrieval. • Generally no requirement to forensically retrieve deleted data, absent agreement or court order.

40. Privilege • Privilege is the principled basis on which to object to the production of relevant documents • Important:privilege blocks production of communications – but not to the facts themselves • 4 main categories of privilege: • Solicitor/client privilege (“legal advice privilege”) • Litigation privilege: created or gathered by lawyer for dominant purpose of litigation • Settlement privilege: Negotiations seeking a settlement are presumed to be “without prejudice” unless the circumstances establish otherwise • Case-by-case privilege: other privileged communications based on special relationship

41. Case-by-case privilege • Traditional privileged categories based on special confidential relationships that society has traditionally protected in a zone of privacy • priest-penitent; wife-husband; psychiatrist-patient, etc. • New categories: case-by-case: Wigmore test (Slavutych v. Baker (evidence class)): • The communications must originate in aconfidence that they will not be disclosed. • This element ofconfidentiality must be essentialto the full and satisfactory maintenance of the relationship between the parties. • Therelation must be one which in the opinion of the community ought to be sedulously fostered. • Theinjury that would inure to the relation by the disclosure of the communications must begreater than the benefitthereby gained for the correct disposal of litigation.

42. Solicitor/client privilege • Also known as "legal advice" privilege • Test: 1. communications between a lawyer and client (or client’s agent), 2. where the communications are for obtaining legal advice, AND 3. the communications are intended to be confidential. • Rationale: justice system relies upon full, frank and free communications between client and lawyer: sedulously protect the confidentiality of that relationship • Most common, easiest, strongest form of privilege

43. Solicitor/client privilege • Blank v Canada, 2006 SCC 39: • ‘[T]he justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted lawyers the task of advancing their clients’ cases with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence.’

44. Solicitor/client privilege • SCC: • solicitor-client privilege a fundamental, substantive, constitutional right: not just evidentiary • fundamental justice under s.7 of Charter & right to privacy under s.8 • statute cannot remove solicitor-client privilege by implication; must be explicit • “zealously guarded”: SCC: Celanese

45. Solicitor/client privilege • only exception: when “absolutely necessary” to breach privilege and disclose: • immediate threat of bodily harm • national security • Innocence at stake • and only to the minimum extent necessary • duration: forever

46. Litigation privilege • Test for litigation privilege: • litigation is a reasonable prospect at the time; and • the dominant purpose for the communication was litigation.

47. Litigation privilege • also known as “solicitor’s brief” or “lawyer’s brief” or “litigator’s brief” or “attorney work product”, or “lawyer’s work product” • policy rationale: • litigation privilege exists to ensure the efficacy of the adversarial process • scope: • communications or documents must have been made specifically with litigation in mind • not just between lawyer and client • duration: • ends with the litigation for which the privileged documents were prepared, unless ‘related’ proceedings continue

48. Litigation privilege • Arises from either of two similar contexts: • Lawyer creates: • e.g. memos to file; witness interviews; witness statements; draft arguments; research; memos; correspondence; notes to file; chronology

49. Litigation privilege • Lawyer gathers: • documents lawyer does not create, but obtains documents from other sources by own sweat and ingenuity (e.g. Hodgkinson) • documents from non-parties; documents from witnesses, documents from agencies; internet search results; library books; company searches; property searches; credit searches; materials in other litigation (registry search); iPhone video of accident obtained from a witness • can decide whether or not to produce and generally can produce favourable documents, but not unfavourable

50. Hickman v. Taylor • Hickman v. Taylor 1947, US S Ct. • tugboat sank; 5 of 9 crew members drowned • industrious defence lawyer interviews survivors and various non-party witnesses; • obtained some signed statements • makes memoranda of other interviews • one year later, one of the survivors, a claimant, applied for copies of witness interviews, etc.