A litigation culture has arisen in this province over the last three decades which extols creating and litigating peripheral procedural disputes, instead of moving towards the timely adjudication of disputes on their merits. That culture now lauds, as the skilled barrister, the motions specialist, not the final hearing expert.
- Justice Brown of the Ontario Court of Appeal in “A 5-Point Action Plan to Get the Civil Justice System Moving Back in the Direction of Achieving its Fundamental Goal – The Fair, Timely and Cost-Effective Determinations of Civil Cases on their Merit”
The culture of creating and litigating peripheral disputes instead of going to trial has caused documentary discovery to go awry. Many lawyers no longer focus on which documents are truly needed to establish the elements of their claim or defence. This unfocused discovery “designed to uncover facts that relate only tangentially, if at all, to… the theory of the case” wastes time, money, and energy (Larry Pozner and Roger Dodd state in Cross-Examination: Science and Techniques).
To recalibrate documentary discovery, Justice Brown recommends in “A 5-Point Action Plan” that we narrow the obligation to produce documents. In particular, he suggests that parties’ limit their requests to the documents that they intend to rely upon at trial or to the documents that the other side would rely upon at trial to support its claim or defence:
 To achieve that re-orientation, we need to re-jig the timing of mandatory documentary disclosure so that it reflects the link between the materiality of a document to the adjudication of an issue at trial. To that end:
(i) The plaintiff/applicant should deliver with its claim or notice of application the documents upon which it intends to rely at the trial or final hearing;
(ii) The defendant/respondent should deliver with its defence or responding materials (i) the documents upon which it intends to rely at trial together with (ii) those documents which the defendant should reasonably foresee would assist the plaintiff in establishing its case;
(iii) The plaintiff/applicant would be required to deliver with its reply (or in any event of a reply) those documents which the plaintiff should reasonably foresee would assist the defendant in establishing its defence; and,
(iv) Each side could then make one or two rounds of post-pleading requests for further documents…
 To those raised in the traditional adversarial system, requiring a party to produce documents which it should reasonably foresee would assist its opposite party at trial might seem like unusual phrasing. But, the essence of such a production obligation would not differ from the current obligation to produce “relevant” documents, for documents which would assist the other side at trial by definition would be relevant…
 By requiring the parties to produce the material trial-related documents with their pleadings, arguably one could narrow and focus subsequent rounds of production requests and reduce e-discovery costs…limit the number of discoverable issues to those which really will count at trial and also restrict the scope of e-mail discovery to those issues, as well as to the handful of custodians who actually had something to do with those issues.
Justice Brown’s article should be mandatory reading for every law student, civil litigator, and Rules of Civil Procedure drafter. It is crucial that we rein in ballooning, disproportionate requests for documents that relate only tangentially to the case. Failing to do so, in the words of Justice Brown, enables documentary discovery to become akin to seppuku, a form of ritual suicide.