Modern Discovery: Planned Productions

By Paul Mitassov

Individuals and businesses possess more files than ever before, most of them in electronic format. When individuals or businesses become involved in litigation these electronic documents may become subject to documentary discovery rules and have to be produced to an opposing party. In order to deal with the production of extensive electronic documents in an orderly, consistent, and proportional manner, it is mandatory that parties to litigation agree to a “discovery plan” under the Rules of Civil Procedure.^[1] This article will review the relevant discovery rules and highlight some of the considerations to take into account when drafting and agreeing to a discovery plan.

Proportionality Rules
In 2010, the Rules were amended to make the process of litigation in general^[2]—and electronic discovery proceedings in particular^[3]—proportional to the issues at stake. The new Rules specifically require the parties to create a discovery plan prior to attempting to obtain any evidence by way of discovery of documents or examination.^[4] In brief, a discovery plan is a document that sets out the scope of documents to be produced, dates for exchange of documents, how documents will be produced, and who will be examined. If the parties fail to agree on a discovery plan, the court may create one for them, often using the parties’ proposed plans for guidance.^[5] However, the court will only step in where the parties have already made serious negotiation efforts of their own.^[6]

In Hryniak v. Mauldin,^[7] the Supreme Court of Canada affirmed that proportionality is important and should infuse all parts of a legal proceeding.^[8] Many courts now rely on proportionality reasoning to limit discovery proceedings where the amounts at stake are small and/or the likely results of discovery are of marginal relevance.

Rules for Discovery
The nature of a party’s pleadings will govern the scope of discoveries they are permitted to make: broad pleadings (alleging broad damages) permit broad discoveries.^[9] However, the opposite party is also able to make broad discoveries in response to a plaintiff’s broad pleadings.^[10] The length of oral discovery will be proportionate to the sums at stake in a trial.^[11] The extent of documentary productions will also be proportionate: sometimes only a sample set of records needs to be produced.^[12]

Discovery proceedings prior to a pending motion for summary judgement will likely be limited to the issues raised on such a motion. The discovery process in general will often be stayed until the outcome of the summary judgement proceeding, as there is no entitlement under the Rules for one party to seek an affidavit of documents from another in the face of a pending motion for summary judgment and in the absence of a discovery plan.^[13]

Where a party has complied with the original discovery requests, additional productions will be hard to obtain unless there is strong evidence that further, highly-relevant data exists within the newly-demanded production set. For example, further production may be ordered if the documents already produced repeatedly reference detailed data that can be found in additional documents, or there is evidence that additional relevant information may exist (i.e. inconsistent documents^[14] or admissions during discoveries^[15]). However, the court will often decide that there is already enough evidence on the issue in dispute, and refuse additional requests as being disproportional.^[16] Further production is even less likely where initial productions suggest that there is no additional information to be found (i.e. the metadata indicates that the complete set of data is already on display).^[17]

The costs of production will typically be borne by the producing party, even where 40,000+ documents must be reviewed.^[18] However, the costs of electronic file management and review constitute a “disbursement reasonably necessary for the conduct of the proceeding” within the meaning of Item 35 of Part II of Tariff A to the Rules and therefore may be recoverable from the opposing party on a costs award.^[19]

For all of the above reasons, it is vital to agree on a proper discovery plan with opposing counsel at the start of litigation. The discovery plan must be in writing,^[20] and it should clearly state who is to review which documents.^[21] It must be acted on promptly, on pain of cost sanctions.^[22] It should also include provisions to review documents for relevance and privilege prior to their production.^[23]

Discovery Plan Tips
A good documentary discovery plan should identify the following:

• The issues in dispute (ideally resolving minor ones through early settlement)
• The types of records that may pertain to these issues (ideally ranked in order of likely relevance)
• The data custodians – people who may possess these records (ideally narrowed down to the individuals who were most involved with the issues now in dispute)
• The search terms likely to find the relevant records among the custodians’ databases (without returning too many irrelevant records)
• The electronic databases and hard drives that shall be searched (i.e. hard drives of potentially offending department members), and those that shall not be searched (i.e. company’s collection of comedic cat videos)
• The review protocols that shall be used by junior legal staff to check the produced records for relevance and privilege
• The deadline for the final set of files to be delivered to the opposing party
• The format these files shall be delivered in (electronic vs. paper, file format, etc.)
• The nature/identity of any third-party experts that shall be used to review files, if any.
• The rights to make subsequent production requests, if any
• The rights to preserve privilege over inadvertently disclosed privileged documents (note: such “claw-back” clauses may not work^[24])
• Any other provision that may save time and expense

Conclusion
Discovery plans are not optional. Litigants should invest serious effort into preparing discovery plans, especially in complicated cases involving significant amounts of electronically stored information. Such efforts will repay themselves via shorter, cheaper, and less litigated discovery proceedings.