The New Ontario Rules Call for Systematic Discovery Planning and Management

There’s been a good deal of hoopla about project management and the legal profession lately. I banged the drum last November and we’ve had a Slaw book review about project management by Andrew Terrett and another on work procedures by John Gilles. Canadian Lawyer Magazine recently validated our Slawyerly interest in the way we work by deeming project management a “buzz” for 2010. In contrast to my market-related argument from last November, I write this post to make the simple point that the discovery-related amendments to the Ontario Rules of Civil Procedure are a practice-related reason to engage in systematic discovery planning and management.

The new Rules expressly call for a written “discovery plan” that addresses scope, timing, manner of production, the nature of oral discovery and “any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action.”

This is an invitation to plan for discovery, which is the most costly and complex part of our civil procedure. A lawyer’s skill also has less bearing on the discovery process today that it ever has. E-discovery, in particular, is a technical process that requires the participation of multiple individuals with special skills. This complexity means that discovery planning is not enough; in all but the most simple cases the discovery process must also be actively managed.

The discovery plan rule, however, is just a superficial impetus. The real thrust towards planning and management comes from the proportionality principle, which is now a governing principle for the Ontario Rules and a principle that expressly governs discovery-related remedies.

The Rules now invite parties to take ownership of the discovery process and develop a tailored path for exchanging information that fits the nature of the dispute. In the Foreword to The Sedona Canada Principles Addressing Electronic Discovery, Justices Campbell and Scanlan explain that proportional discovery is about scaling down from the “every piece of information” approach to litigation. Yet a party who is blind to its discovery tasks, dependencies, costs, risks and options will have no ability to scale down, either with or without the other party’s agreement. How do we define the scope of electronic production if we only have a hazy idea of our potentially producible information? Or how do we assess whether electronically stored information should be brought into the discovery process unless we know the steps it will take to do so, the cost of those steps and the potential complications? Planning enables parties to take control of the discovery process and scale down as appropriate in light of the new Rules.

What if we don’t spend enough time up front to understand, plan and then manage the discovery process? What if we’re engaged in a less complex or smaller value file but fail to scale down? The new Rules do not spell out a clear consequence, but in preparing this post I counted more than ten 2010 decisions in which a judge or master cited proportionality in reducing a costs award. Moreover, Master Short has said more than once that the “equality of arms principle” is embodied in the amendments – a principle that suggests a court should not allow a party to spend its way to an advantage. We can expect that, more than ever before, we will be judged on the efficiency with which we litigate. The question of effort expended will remain (though the rule about giving deference to successful counsel may wane), but we can add to that a new set of questions about the appropriateness of a chosen procedure. Those who plan and manage the discovery process and pay heed to the directive embodied in the new Rules will be best prepared for judgment on both these points.

Comments

  1. I’ve been beating this particular drum for a while now, in part because I’ve seen the results of inadequate eDiscovery planning and it’s not pretty.

    There are really no shortcuts in the planning process. Failing to plan is akin to running a marathon without adequate training. It can be done, but it will be far more painful that it really needs to be, and the various risks are much higher.

    It may seem like it’s easier to just “do” rather than “plan”, but eDiscovery demands a more proactive approach.