The Role of Documentary Discovery in Civil Litigation
In Ontario, parties are required to disclose to the opposing side every document in their power, possession or control that is relevant to the lawsuit. Lawyers are required to explain to the client the necessity of making full disclosure and must sign a certificate to that extent.
The purpose of this disclosure was discussed in a recent decision. In short, each party is entitled to know what documents exist for potential use at trial. The decision also highlights what is not required, namely a party is not required to explain how or where relevant documents were found, or explain the methodology of its search for the documents.
While documentary production sounds straight forward in theory, in practice it is often a more tricky issue. In some instances, the client provides the lawyer with an avalanche of documents, many of which have no real relevance to the case. In other instances, the client produces only a fraction of their documents, notwithstanding counsel’s request to make full disclosure. This usually occurs as a result of oversight, or the client not being prepared to spend the time or effort to complete a thorough search of its files. Unfortunately, failure to make full production at the outset invariably results in increased costs and delays down the road.
My practice is to ask my client for any document they have that could possibly be relevant to the case, including documents of which they are unsure. I prefer to see everything up front and err on the side of caution as opposed to learning a year into the lawsuit (or even right before trial) that there are documents that have not been produced that hurt or, even worse, help my client’s case.
The decision in the cited case, Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd. [2012] O.J. No. 6082, 2012 ONSC 7243, is not to be followed. In effect it says that the state of a party’s electronic records management system (ERMS) is irrelevant to electronic discovery proceedings. Specifically, it holds that the parties are not to demand to know how searches for relevant records were done, nor can they investigate parts of opposing partys’ ERMSs, such as hard drives. But the accessibility and storage of electronic records are essential parts of ERMS technology. Electronic discovery cannot produce fair and accurate results unless the quality of the electronic records management is investigated.
Electronic records and ERMS technology are fundamentally different than pre-electronic paper records and paper records management systems. An electronic record depends upon its ERMS for its existence, its accessibility, and its integrity. A paper record does not. An electronic record in an ERMS is like a drop of water in a pool of water—the drop is dependent upon the pool for everything. That fundamental dependence of an electronic record upon its ERMS for everything is the “system integrity” concept, i.e., the integrity of an electronic record is dependent upon the integrity of the ERMS wherein it is stored. That concept is expressly made the basis of the rule of admissibility in the electronic record provisions that are in 11 of the Evidence Acts in Canada—e.g., s. 34.1(5),(5.1) of the (Ontario) Evidence Act, and s. 31.2(1) of the Canada Evidence Act. Nothing is more important to the purpose of electronic discovery than discovering admissible records. Therefore the “system integrity” concept is of fundamental importance to the requirements of both admissibility and electronic discovery. Therefore an investigation of the quality of electronic records management is mandatory. And therefore, how can the Sedona Canada Principles–Addressing Electronic Discovery be an adequate text, given that it completely ignores the importance of electronic records management, and the critical dependence on an electronic record upon its ERMS, and also the provisions of the Evidence Acts? It also ignores the National Standards of Canada for electronic records management. If the parties could exchange up-to-date certifications of compliance of their ERMSs with those national standards, the issue as to the adequacy of their records management would be concluded in less than minutes. Truthfully, the text, e-Discovery for Dummies (Wiley Publishing, Inc., 2010) is a much more competent text than is the Sedona Canada text. But it is the Sedona text that controls electronic discovery in Ontario—Rule 29.1.03(4) of the Rules of Civil Procedure. The whole of chapter 14 of the Dummies text is devoted to that critically important dependence, and to its consequences upon electronic discovery proceedings. And throughout the text (346 pages) there are many reference to the relationship between the state of an ERMS system and the requirements and procedures of electronic discovery. What bit of Canadian legal literature does that? I’ve written the following articles that do that:
1. “Electronic Discovery—Sedona Canada is Inadequate on Records Management—Here’s Sedona Canada in Amended Form” (2011), 9 Canadian Journal of Law and Technology 135;
2. “The Admissibility of Electronic Business Records” (2011), 8 Canadian Journal of Law and Technology 105;
3. “Electronic Records for Evidence and Disclosure and Discovery” (2011), 57 Criminal Law Quarterly 284;
4. “Electronic Discovery in the Criminal Court System” (2010), 14 Canadian Criminal Law Review 111;
5. “Electronic Records as Documentary Evidence” (2007), 6 Canadian Journal of Law and Technology 141;
6. “Why a Legal Opinion is Necessary for Electronic Records Management Systems” (2012), 9 Digital Evidence and Electronic Signature Law Review” 17 (U.K.) (this article is written for related professions as well as for lawyers).
———- Ken Chasse, Toronto.
In some cases, we can’t determine whether a party has complied with the obligation to make proper disclosure of electronic records unless one knows the parameters of the storage system, including the indexing and retrieval routines.
What’s implicit in Zenex is what’s become the judicial tool for controlling perceived discovery abuse: the proportionality rule. The irony (for Ontario) is that the proportionality rule (29) is not mentioned at all in the rule setting out the documentary disclosure requirements (30). That’s unlikely to have been an oversight, given that the Rules distinguish between disclosure and production, and Rule 29 specifically refers ONLY to discovery production and the obligation to answer discovery questions. Rule 30’s disclosure requirement, however, is based on relevance. It’s not limited by proportionality. Some of you may have already seen the inherent conflict in that dichotomy.
In any event, it’s also unlikely that Justice Morgan missed that (his pre-judicial bio is here:, which probably explains why he didn’t explicitly mention Rule 29 or proportionality but rather based his decision on “no fishing” principles.
As to whether Zenex is or is not to be followed in Ontario …. well …
First, it’s binding on those lower in the judicial pecking order, which means the Masters who hear more of discovery related motions than judges. While it’s only persuasive for judges, one might argue it currently reflects the perceived views of the ONCA. If it does, then keep in mind what an Ontario trial judge (later an ONCA judge) once said: that it “ignores reality” to expect trial judges to use technical rules of precedent to avoid applying what seems to be their CA’s current thinking.
I suppose, though, that depends, to some extent, on how professional ambitious the judge is.