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.