In 2003, the Task Force on the Discovery Process in Ontario (“Discovery Task Force”) delivered recommendations on how Ontario's civil discovery process may be improved.  44  It made recommendations on two fronts: (1) the development of best practices to promote among lawyers a broader acceptance of the value of collaboration and a better appreciation for cost-effective and efficient ways to conduct discovery; and (2) amendments to the Rules of Civil Procedure, including a narrower scope of discovery and default time limits on oral discovery. Few of the recommended amendments have been incorporated into the Rules of Civil Procedure.

The development of best practices was proposed in recognition of the fact that many problems with the discovery process arise from a culture of litigation that rule amendments would not be able to remedy. In its Supplemental Report the Discovery Task Force released best practices or guidelines for the conduct of discovery generally, as well as specific guidelines relating to the disclosure and production of electronic documents, discussed in greater detail below.

A conclusion reached by the task force, which I also reached during this Review, is that discovery problems do not exist everywhere in the province. They were found to arise primarily in larger, complex cases and most frequently in large urban centres such as Toronto. They rarely exist in smaller communities where the bar enjoys a spirit of collegiality and cooperation. In making my recommendations below, this reality of civil litigation in Ontario was duly considered.

Review consultations and the commendable work of the Discovery Task Force identified the following issues:

1. Whether to narrow the scope of discovery.
2. Whether the duration of oral examinations for discovery should be limited.
3. Whether refusals based on relevance at an examination for discovery should be permitted.
4. How best to deal with the discovery and production of electronic documents.
5. Whether discovery planning should be a requirement under the rules to promote more efficient discovery management.

Scope of Discovery

The scope of documentary discovery, as established in rule 30.02, encompasses “every document relating to any matter in issue in an action.” This has widely been interpreted in case law to require production if a document has a “semblance of relevance.”  45  Similarly, rule 31.06 requires a person being examined for discovery to answer “any proper question relating to any matter in issue in the action.” The “semblance of relevance” test applies to discovery questions, in the same way as it applies to production. Relevance under these rules is a much broader and looser test than is applicable at trial, and has led some to observe that “trial by ambush,” the original concern, has been replaced by “trial by avalanche.”

During consultations, the vast majority of those consulted agreed that the scope of discovery ought to be restricted and replaced with a simple test of “relevance.” Indeed, this was the recommendation of the Discovery Task Force. The task force recognized that this change may lead to further motion activity and judicial interpretations of “relevant,” and that any change is unlikely to end the debate over the proper scope of discovery. Nevertheless, it said a narrower test is required to help curb discovery abuse.

I agree with these views. The “semblance of relevance” test ought to be replaced with a stricter test of “relevance.” This step is needed to provide a clear signal to the profession that restraint should be exercised in the discovery process and, as the Discovery Task Force put it, to “strengthen the objective that discovery be conducted with due regard to cost and efficiency.”  46  In keeping with the principle of proportionality, the time has come for this change to be made, which I hope in turn will inform the culture of litigation in the province, particularly in larger cities.

This reform is not targeted at lawyers who make reasonable discovery requests, but rather at those who make excessive requests or otherwise abuse the discovery process. Therefore, a change from “relating to” to “relevant” would likely have little or no impact on those lawyers who already act reasonably during the discovery process. Its effects will be felt by those who abuse discovery or engage in areas of inquiry that could not reasonably be considered necessary, even though they currently survive “semblance of relevance” analysis.

Duration of Oral Discovery

A variety of factors contribute to unduly long examinations for discovery, including lack of preparation or experience on the part of counsel, irrelevant or repetitious questions or, in some cases, lawyers' billing targets. The Discovery Task Force referred to “numerous scenarios in which individual or small business litigants were forced to abandon claims or accept less than adequate settlements as a result of excessive discovery costs.”  47 

Many with whom I met expressed similar concerns about oral discoveries being fishing expeditions, unfocused or conducted by poorly prepared counsel who are unduly concerned about overlooking potential facts and issues. A few also noted lawyers' self-interest in prolonging examinations to achieve billing targets. As I have suggested, prolonged oral discoveries did not appear to be a problem in smaller Ontario communities.

However, what was consistent among the views I heard was that a default of one day (or seven hours) of examination per party is sufficient in most cases. I emphasize that the one-day limit should be a default time. There will be cases where more than one day will be required. The one-day default rule ought to permit parties to agree to more than one day for discoveries. Failing agreement, the court would determine the discovery time allocation.

In my view, this approach responds to concerns about unduly long and costly discoveries. It places reasonable limits on their duration for the typical case, and permits flexibility as needed for more complex cases. I recognize that this reform has the potential to generate motions seeking orders for more than one day of oral discovery. However, in most cases, counsel acting reasonably and having considered the cost of discovery and the importance, nature and value of the claim should be able to agree as to whether or not more than one day is needed. I would hope it would be in the rarest of cases that counsel would require the assistance of the court in determining the appropriate duration of examinations.

Refusals Based on Relevance

It was proposed that the rules should be amended to require parties to answer all questions at an examination for discovery, regardless of whether there is an objection on the basis of relevance. The only permissible objection would be on the basis of privilege, although some would add an “egregiously irrelevant” exception. In this model, any objections on the basis of relevance would be noted by counsel during the examination and recorded in the transcript, but the party being examined would be required to answer the question. The trial judge would determine its relevance and admissibility, where required. This is the approach currently in place under the U.S. Federal Rules of Civil Procedure (rule 30(d)).

Although this reform is attractive in some respects, it has the clear potential for adding costs. It would also tend to broaden the scope of discovery, inconsistent with my recommendation to narrow its scope to that information which is “relevant.” Parties would be required to answer questions that are only marginally relevant and, even worse, questions that are entirely irrelevant.

Moreover, there does not appear to be a significant call for reform in this area, except perhaps in some complex cases or in larger urban centres. I am reluctant to recommend a reform that will apply to all cases when the problem is experienced in a few. Instead, as observed by the Discovery Task Force, I would encourage parties, in cases where the scope of what is “relevant” is murky, to voluntarily answer such questions and note on the record the objection to the question on the basis of relevance. This process is already permitted under rule 34.12(2), which reads:

A question that is objected to may be answered with the objector's consent, and where the question is answered, a ruling shall be obtained from the court before the evidence is used at the hearing.

Accordingly, I do not recommend the adoption of a new rule that would require parties to answer questions objected to on the basis of relevance.

Discovery and Production of Electronic Documents

Discovery and production of electronically stored information (generally referred to as electronic discovery or “e-discovery”) is an issue that poses new problems and complications for litigants, their counsel and the judiciary. It is not an issue that is confined to large litigation files. Useful work in this area has been done by Justice Campbell and his e-discovery subcommittee.

Under the rules, litigants have an obligation to disclose all “documents” relating to the matters in issue. The rules have defined “document” broadly to include “data and information stored in electronic form.”

There are four key issues relating to e-discovery:

• Scope of electronic documents: When fulfilling an obligation to search and disclose documents, to what extent must a party search for and disclose information found in all electronic sources (e.g., computer hard drives, floppy disks, CDs, back-up tapes, BlackBerries)?
• Preservation of electronic documents: What measures should parties involved in litigation, or imminent litigation, follow to ensure that all relevant electronic data is preserved to avoid subsequent potential tort litigation?
• Review of electronic documents: What procedures should be adopted to review, efficiently and cost-effectively, electronic documents to determine which documents are relevant and which are not?
• Production of documents in electronic form: Under what circumstances should parties produce documents electronically (rather than in hard copy)? In what electronic format should they be produced? Should documents in hard copy be produced electronically?

In 2005, the Discovery Task Force released its Supplemental Report, which included E-Discovery Guidelines.  48  Rather than amendments to the Rules of Civil Procedure, the task force proffered guidelines in recognition of the fact that the culture of litigation was not yet ready for rules to mandate e-discovery. Instead, the guidelines set out a number of principles with commentary intended to guide lawyers, clients and the judiciary through the e-discovery process.

In 2007, Justice Campbell coordinated a national committee to establish e-discovery guidelines for all Canadian jurisdictions, based on national guidelines developed by The Sedona Conference® in the United States. National e-discovery guidelines for Canada were sought because commercial and class action proceedings are often multi-jurisdictional, and e-discovery practices may well inform business practices (including document retention policies) of national corporations.

A first draft of The Sedona Canada Principles has been prepared.  49  The draft provides a set of principles for e-discovery with practical commentary. All of this is said, I think correctly, to be compatible with discovery rules in all Canadian jurisdictions. The draft draws heavily upon the Discovery Task Force's E-Discovery Guidelines.

Examples of the key principles and practices recommended in The Sedona Canada Principles include the following:

• Parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, (ii) the relevance of the available electronically stored information, (iii) its importance to the court's adjudication in a given case, and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
• Counsel and parties should meet and confer as soon as practicable and on an ongoing basis regarding the identification, preservation, collection, review and production of electronically stored information.
• The parties should be prepared to disclose all relevant electronically stored information that is reasonably accessible in terms of cost and burden.
• Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced.

I am not inclined to recommend a series of rules to deal with e-discovery issues. To do so would impose on every case mandatory e-discovery obligations that may not be necessary or sufficiently flexible to suit the needs of different cases. It may also be too soon in Ontario's litigation culture to introduce such a reform.

Instead, I would encourage greater use and reliance upon the E-Discovery Guidelines and The Sedona Canada Principles. The Sedona Canada Principles and accompanying commentary may be more effective than rules. They reflect the value of proportionality, flexibility and cooperation among parties in the context of e-discovery. These are central themes in this Review. They provide assistance to counsel on what issues should be considered. What is crucial is that parties consider e-discovery issues and tailor discovery plans and agreements to meet the needs of their case. At least for now, this is a better approach than having rule-based protocols that would be applicable in all cases.

However e-discovery issues are addressed, it is clear that lawyers and judges can no longer turn a blind eye to e-discovery, which can have a significant impact on the cost of litigation and its timely resolution.

I believe it would help if reliance on the E-Discovery Guidelines and The Sedona Canada Principles were encouraged through a Practice Direction. This would state that the court may refuse to grant discovery relief or may make appropriate cost awards on a discovery motion where parties have failed to consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles – in particular the requirement to meet and confer on the identification, preservation, collection, review and production of electronically stored information.

In the longer term, the Civil Rules Committee might consider ways to more fully incorporate e-discovery concepts into the Rules of Civil Procedure. This should only occur, in my view, after the profession has had time to familiarize itself with the E-Discovery Guidelines and The Sedona Canada Principles.

Discovery Planning

One proposal that I received was to amend the rules to require parties to agree upon a discovery plan early in the litigation process. The objective of a discovery plan would be to reduce or eliminate discovery-related problems by encouraging parties to reach an understanding early in the litigation process, on their own or with the assistance of the court if needed, on all aspects of discovery.

During consultations, the need for such a rule amendment was questioned, given the time and cost associated with formalizing a discovery plan, especially in cases where parties do not have discovery problems. I do note, however, that this reform is in place in several American jurisdictions (Texas, New York, Arizona).

In my view, parties should be encouraged to discuss early in the litigation how discovery will unfold, when and how production will occur and when oral discoveries will take place. It would be prudent to document areas of agreement and disagreement, if any. Early discovery/production planning will reduce costs in the long run.

A Practice Direction to promote discovery planning should also be considered, along the lines suggested above regarding e-discovery. It would state that the court may refuse to grant discovery relief or may make appropriate cost awards on a discovery motion where parties have failed to produce a written discovery plan addressing the most expeditious and cost-effective means to complete the discovery process proportionate to the needs of the case, including:

1. The scope of documents to be preserved;
2. The issue of proportionality (i.e., the scope of discoverable documents and the associated costs of searches and production, balanced with the discovery-related needs of the case)
3. Dates for the exchange of sworn affidavits of documents;
4. Number of experts and timing of delivery of expert reports;
5. Time, cost, and manner of production of documents from the parties and any third parties who may have relevant documents; and
6. Names of individuals proposed for oral discovery and the expected date and duration of examinations, along with any agreement to examine a party for more than one day.

Recommendations (Discovery)

• The phrase “relating to any matter in issue in the action” should be replaced with “relevant to any matter in issue in the action” in all rules relating to discovery. The effect of this recommendation is to discard the “semblance of relevance” test and replace it with a simple relevance test.
• Amend rule 31 to provide that each party have up to a maximum of one day (seven hours) to examine parties adverse in interest, subject to agreement otherwise or a court order.
• As a best practice, encourage parties to voluntarily answer questions at an examination for discovery that are objected to on the basis of relevance, as permitted under rule 34.12(2). In addition, encourage the court to consider the availability of the process in rule 34.12(2) when making the appropriate cost awards on refusals motions.
• The Office of the Chief Justice of the Superior Court of Justice should consider issuing a Practice Direction that would state the court may refuse to grant any discovery relief, or may make appropriate cost awards on a discovery motion, where parties have failed to:
  1. Consider and, to the extent reasonable, apply the E-Discovery Guidelines and The Sedona Canada Principles, in particular, the requirement to meet and confer regarding the identification, preservation, collection, review and production of electronically stored information;
  2. Develop a written discovery plan addressing the most expeditious and cost-effective means of completing the discovery process in a manner that is proportionate to the needs of the action, including:
     1. The scope of documents to be preserved as determined by both relevance and application of the principle of proportionality (in the context of the costs associated with document searches and production being balanced with the needs of the particular case);
     2. Dates for the exchange of sworn affidavits of documents;
     3. Number of experts and timing of delivery of expert reports;
     4. Time, cost and manner of production of documents from the parties and any third parties who may have relevant documents; and
     5. Names of those to be produced for oral discovery (an issue which may be relevant if a party is a corporation) and the dates and length of examinations.