Discovery of Documents in Saskatchewanredengine.lawsociety.sk.ca/inmagicgenie/documentfolder/CPLED200910...Discovery of Documents in Saskatchewan . ... The essential elements of these

Saskatchewan CPLED Program Civil Procedure Section 2

Discovery of Documents in Saskatchewan

Contents

Introduction .......................................................................Civil-2-1

Discovery of Documents: The Obligations.......................Civil-2-1

The Obligation to Disclose ................................................Civil-2-2 What is a Document ....................................................Civil-2-2 Meaning of an Action ..................................................Civil-2-3 Possession, Custody or Control ...................................Civil-2-3 Relating to any Matter in Question in the Action.......Civil-2-6

Standard of Disclosure .......................................................Civil-2-7

The Lawyer’s Duty with Respect to the Obligation to Disclose ........................................................................Civil-2-12

The Obligation to Produce ..............................................Civil-2-14

Enforcement to the Obligations to Disclose and to Produce ........................................................................Civil-2-15

Disclosure and Production of Electronic Documents ......Civil-2-17

Use of Notice to Admit ....................................................Civil-2-24

Electronically Stores Information and E-Discovery ........Civil-2-25

Saskatchewan CPLED Program Civil–2–i

Civil Procedure Section 2 Discovery of Documents in Saskatchewan 2009 © The Law Society of Saskatchewan

Civil–2–ii Saskatchewan CPLED Program

Civil Procedure Section 2 2009 © The Law Society of Saskatchewan Discovery of Documents in Saskatchewan

Forward

In the preparation of this paper, the writers feel compelled to acknowledge the work and effort demonstrated by Henry Kloppenburg, Q.C., who prepared an earlier paper for this particular portion of the Bar Admission Course. Mr. Kloppenburg’s paper, Discovery of Documents in Saskatchewan: An Overview, is an excellent resource for law students and trial lawyers alike. Aside from dealing effectively with the substantial legal issues involved in the disclosure and production of documents, the paper provides an excellent discussion about document management in the course of preparing a civil proceeding. The paper was revised in 2003 by Rick Elson, McKercher McKercher & Whitmore LLP (Saskatoon) and in 2004 by Shaunt Parthev and Robert Nicolay, with revisions in 2005, 2006 and again in 2009. The present authors categorically acknowledge that, in the preparation of this work, Mr. Kloppenburg’s paper has been the principal resource for most of the references contained within it.

With respect to the comments in this paper on the issue of disclosure and production of electronic documents, the writers would be remiss in failing to acknowledge the work of Richard Danyliuk of McDougall Gauley’s Saskatoon office in his paper entitled, What is a Document and What are your Obligations? He presented this paper at the Saskatchewan Legal Education Society Inc.’s “Production of Documents” seminar in May of 2003. The writers also acknowledge the invaluable commentary provided by Mr. Justice Thomas Granger of Ontario’s Superior Court in the Lang Michener Supreme Court of Canada L@wletter (Issue No. 5 of 2004). The L@wletter is a free service provided to lawyers across Canada via email. It is an excellent source of current information for occurrences at the Supreme Court. The writers acknowledge that these two authors’ works, as well as the contributions of Michael Phillips of McDougall Gauley LLP and John Agioritis of MacPherson Leslie & Tyerman LLP relating to electronically stored information and e-discovery, were the principal resources for all of the commentary in this paper discussing disclosure and production of electronic documents.

Saskatchewan CPLED Program


Saskatchewan CPLED Program


Introduction

Discovery of documents is a fundamental feature of the civil procedure in Canadian common law jurisdictions. It has a long history, going back to the laws of the Roman Empire, evolving through the English chancery practice and eventually finding a home in the English common law in the mid 19th century.

Discovery of documents was received by the common law provinces in Canada as part of the receipt of English law when each province joined Confederation.

It has been said that effective discovery of documents goes directly to the quality of justice. This statement assumes that the likelihood of “correct results” in the civil justice process is increased when each party has access to all of the documents material to their claim or defence. As many trial judges have justifiably asserted, discovery of documents also tends to prevent ambush and surprise at trial. It also promotes relatively shorter trials in that discovery can lead to admissions which, in turn, reduces the amount of evidence necessary to call at trial. In this paper, we have endeavoured to provide a summary of the practice of discovery of documents in Saskatchewan.

Discovery of Documents: The Obligations

The practice of discovery of documents is laid out in Rules 211 to 221 of the Queen’s Bench Rules. The essential elements of these Rules are founded upon two obligations, simply stated as the “obligation to disclose” and the “obligation to produce.” More particularly, these respective obligations are described as follows:

1. a party to an action is obliged to disclose to the opposing party the existence of all documents, relating to the matters in issue in an action, that are within the power or possession of that party; and

2. a party to an action is obliged to produce to the opposing party any document that has been disclosed unless a proper claim to withhold production of it is advanced.

Saskatchewan CPLED Program Civil–2–1


The Obligation to Disclose

A formal description of the obligation to disclose is contained in Queen’s Bench Rule 212(1):

Parties to an action shall, within ten days after a statement of defence has been filed, and without notice, serve on each opposite party a statement as to the documents which are or have been in his possession or power relating to any matter in question in the action.

From this Rule, it is evident that a number of threshold issues must be considered before counsel can deal directly with the substantive matter of disclosure

What is a Document? Rule 211 provides an inclusive definition of the term “document,” for the purposes of considering the other applicable rules:

211. In this Part, “document” includes information recorded or stored by means of any device and includes an audio recording, video recording, computer disk, film, photograph, chart, graph, map, plan, survey, book of account or machine readable information.

This definition was made necessary after the trial judgement in Fobel v. Dean (1989), 76 Sask. R. 87 (Q.B.). In that case, defence counsel sought to introduce surveillance video films into evidence principally for the purpose of attacking the plaintiff’s credibility in a personal injury action. The films were not disclosed until defence counsel sought to introduce them at trial. The trial judge accepted the defence argument that the films were not documents and were therefore not subject to either the rules for disclosure and/or production rules. Interestingly, the relevant jurisprudence from Ontario suggested that a video surveillance film did have the character of a document and that the party who had possession or control over it was required to disclose it, although, depending upon its purpose, was not necessarily obliged to produce it.

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It is now clear that “document” will be given an extremely broad interpretation, being any medium that carries information. There are also specific rules addressing the introduction of video evidence, assuming that type of evidence is intended to be used at trial.

Meaning of an Action An “action” is defined in s. 2 of The Queen’s Bench Act, 1998:

“Action” means:

(a) a civil proceeding commenced by statement of claim or in any other manner authorized or required by this Act or the Rules of Court; or

(b)any other original proceeding between a plaintiff and a defendant.

Given this definition, it is clear that discovery of documents is not confined to those proceedings that are commenced by Statement of Claim or are otherwise subject to an exchange of pleadings. Having said that, it is obvious that the discovery of documents provisions do not apply with respect to court applications for judicial review, even though such applications arguably fall within the above definition of “action.” Since the admissibility of extraneous evidence and the production of a record are subject to specific rules in applications for judicial review, discovery of documents obviously has no real or practical value. Consequently, the appropriate rule of thumb for counsel dealing with a matter proceeding by way of judicial review would be to assess the likelihood of viva voce evidence being given in a trial forum. If this is a realistic possibility, discovery of documents is appropriate and should be called for.

Possession, Custody or Control Rule 212 requires disclosure with respect to broadly relevant documents in the “possession, custody or control” of the party on whom the obligation to disclose rests. Additionally, sub-Rule 212(2)(b), often disregarded by counsel and parties alike, requires each party to disclose documents which are of the following nature:

have been, but are not, at the time of making the statement, in the possession, custody or control of such party, the nature of such documents, and when they were last in his possession, custody or control, and where they are likely to be found ….



The required form for the language of a Statement as to Documents (Form 15) employs an additional term requiring the obligation to apply to documents in the “possession or power” of a given party. With respect to matters proceeding under the Part 40 – Simplified Procedure Rules, Form 125 (Affidavit of Documents and Witnesses) is the required form. It contains similar requirements with respect to the necessary scope of documentary disclosure, but also requires each party to provide a list of the names and addresses of potential witnesses for the matter in Schedule D. Form 125 requires the party to swear an affidavit attesting that they have made full disclosure of all information required and requires each party’s lawyer to sign a certificate certifying that the party has been advised of the necessity of making full disclosure.

The definition of possession is relatively obvious in that it applies to possession in the same sense that a person would possess personal property.

Although the term “custody” has not received specific judicial comment, the most probable definition is that it refers to documents that are in the physical possession of a given party but not in that party’s legal possession. In other words, it describes possession without ownership, such as in the case of a bailee.

The word “power” refers to the control over which the party in question has over the document in question, a notion that is supported by the fact that Rule 212(2) refers to the word “control” as opposed to “power” when describing the obligations with respect to a Statement as to Documents. References to the following examples are helpful in applying this term:

• a patient’s medical record in the possession of a physician is within the control of the patient for the purposes of Rule 212: Zerr v. Rahn (1987), 63 Sask. R. 74; and McInerney v. MacDonald (1993), D.L.R. (4th) 415 (S.C.C.).

• power of a majority shareholder of a corporation to control a document within the possession or control of that corporation: Dunn, J. and Comrie v. Woodward Stores (1981), 3 W.W.R. 97 (Alta. C.A.).

• access on the part of executives of a corporation who have daily access in the course of their work to documents owned and within the possession of a corporation are within the power of those executives: Skoy v. Bailey et al (1971), 1 W.W.R. 144 (Alta. C.A.).

• access to a document in the possession of a person not a party to the action where disclosure and production will result with written authorization is tantamount to the records being in a party’s custody or power: Parr v. Butkowvich (1978), 6 C.P.C. 237.



• documents which are in the possession of a party’s agent must be included if the agent held them in his capacity as agent: Fischbach and Moore of Canada v. Noranda Mines (1973), 73 Sask. R. 308 (Q.B. Master).

From the foregoing, perhaps the best definition of power can be found in the judgment of Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (1981), W.L.R. 637 at 635 (H.L.):

The expression “power” must, in my view, mean presently enforceable legal right to obtain from whoever actually owns the document inspection of it without the need to obtain the consent of anyone else.

Recently, in Husky Oil Operations Ltd. v. Saskatchewan, 2007 SKQB 355 (“Husky Oil I”), the Court of Queen’s Bench for Saskatchewan indicated as follows at paragraph 41:

If the litigant has sufficient control over the document to obtain it from the party who has possession, then the document is within the power of the litigant.

The Saskatchewan Court of Appeal also confirmed in Spencer v. Canada (Attorney General) (1999), Sask.R. 127 (at p.138-139) that the term “power” is to be given a broad interpretation. In Spencer, Mr. Justice Vancise, for the Court, rejected the argument that when a relevant document is in a third party’s possession and that third party can, for any reason, refuse to produce it, such document is not within the “power” of that party. The mere fact that the third party could refuse to produce the document did not relieve the litigant from the obligation of disclosing its existence. In such circumstances, the litigant is obliged to use his or her best efforts to retrieve the document.

The documents at issue in Spencer were the plaintiff’s medical, educational and employment records, which are the most common examples of the type of documents that give rise to this issue. The Court did acknowledge that if, despite the plaintiff’s best efforts to obtain the documents, the officials who maintained them refused to provide access to them, at that point, the documents could no longer be considered within the plaintiff’s “power.” In those circumstances the defendant’s remedy to obtain production of them would be to resort to applying for production of them under Queen’s Bench Rule 236(1), which confirms a party’s ability to apply for an order to produce documents against a non-party.



The Spencer decision appears to clarify the dilemma faced by counsel who know of the existence of a relevant document in the hands of a third party. If the document is known to exist and it is deemed relevant, then there appears to be an obligation to disclose its existence. Hand in hand with that proposition is a responsibility on counsel to request such documents on behalf of their clients from the entity in possession of them, even if it is not in the client’s “power” to insist on production of them.

Relating to any Matter in Question in the Action At first glance, the phrase “relating to any matter in question in the action” simply means that the document must be relevant in the same sense that would justify the document’s admissibility at trial.

However, it has been found that the definition can well apply to documents which would not ultimately be relevant at trial. From the definition, it would appear that a document would be related to a matter at issue if the following holds:

• it directly or indirectly enabled the person seeking its disclosure and production to advance his own case or destroy that of his adversary; or

• it might fairly lead to a train of inquiry that may have either of these consequences (i.e., that of advancing the case of the person seeking production or destroying the case of the adversary).

See the judgment of Tallis, J.A. in Steier v. University Hospital Board et al (1988), 67 Sask R. 81 (C.A.) in which the above guidelines were described as the “broad relevance” test.

Similar cases going to this issue include Burmah Oil Co. v. Bank of England (1979), 3 All E.R. 700 (H.L.); New Brunswick Telephone Company Limited v. New Brunswick Municipal Affairs et al 33 N.B.R. (2d) 239 (Q.B.); Aitken et al v. City of Regina (1987), 60 Sask. R. 57 (Q.B.); and Milton Farms Ltd. v. Dow Chemical Canada Ltd. (1986),52 Sask. R. 265 (Q.B.). See also Husky Oil I, supra.



Standard of Disclosure

Standard of disclosure simply refers to the method by which the existence of a document is disclosed. Obviously, with respect to those documents about which the party has no objection to produce, the standard of disclosure does not present a particularly significant problem. However, the problem most commonly arises in those instances where the party objects to the production of a document the existence of which must otherwise be disclosed. Rule 212(2)(c) requires that such documents be described in the Statement as to Documents in such a way that they can be identified with “reasonable certainty.” One of the leading cases on this point is Fischbach and Moore Canada Limited v. Noranda Mines Limited (1973), 73 Sask. R. 308 (Q.B.). (This case is a 1973 decision which was reported 16 years later at the request of a subscriber.) In that case, Batten, L.M. (as she then was) found the Statement as to Documents submitted by the defendant to be inadequate. In so doing, the Court commented on the obligations of a party with respect to the standard of disclosure required for documents for which objections to produce are made:

The defendant is entitled to object to the production of documents which are briefs and memorandum prepared by its solicitors in correspondence between itself and its solicitors and between its solicitors and others with a view to this action without further particulars being given of the briefs, etc., so described. The defendant also lists in part of the first schedule to its statement “letters written” “without prejudice.” If these letters do not fall within the category described above, they should be more particularly described so that if the plaintiff objects to them being exempt from production the matter can be adjudicated upon. Queen’s Bench Rule 212(2)(c) specifies that the documents which the defendant objects to produce must “be identified with reasonable certainty.”

Sixteen years later, the matter was revisited before Maurice, J. in Schlechter v. Schlechter (1989), 73 Sask. R. 12 (Q.B.) in which the standard of disclosure was described as follows:

It, therefore, appears to me that for each category of document (i.e., letters from the client to the solicitor, letters from the solicitor to the client, photographs, reports, statements, memoranda, etc.) there should be a separate description. In each case, the sender of the



document or the creator of the photograph or report should be identified and the person to whom it was sent or the person for whom it was prepared should be identified. Each should be given either by listing all the dates of documents falling within a certain category or at least by giving the first date. Depending on the type of document and whether the first date is after or before the action started, it might not be necessary to give all the dates of all the correspondence or reports or photographs if the giving of the first date would make it reasonably apparent that the document was privileged. Needless to say, if a letter of a recent date enclosed a document of a different date, the second document should not be “hidden” by use of a phrase “and disclosures.”

More recently, in Husky Oil I, supra, Justice Ball stated that the standard of disclosure required under Rule 212:

[12] … imposes upon each of the parties to an action a duty to disclose all relevant documents in a manner that identifies them sufficiently to enable the receiving party to understand what is being disclosed and to prepare for trial. See: Fishbach and Moore Canada Ltd. v. Noranda Mines Ltd., Potash Division (1973), 73 Sask. R. 308 (Sask. Q.B.); Saskatchewan Trustco (Liquidation) v. Coopers and Lybrand 2001 SKQB 6; (2001), 204 Sask. R. 29 (Sask. Q.B.).

[13] While the Rules of Court do not mandate specific language for identifying documents, the disclosing party must use a format that will enable other parties to understand what the documents listed are about and how to identify them in the future. Where a party claims that documents need not be disclosed because they are privileged, they must provide a description of those documents sufficient to enable the party receiving the statement to assess and challenge the claim of privilege.

At paragraph 44, Justice Ball went on to say that if a party objects to producing a relevant document within its control,

[44] … it must identify the general nature such documents and the specific grounds of the objection in accordance with the requirements of Queen’s Bench Rule 212(2)(c). The identification of documents in this case must include, the name of the sender, the date, and the names of all recipients. The date of each document must be provided to permit an assessment of whether it was prepared in contemplation of litigation, while the



names of the recipients will be important in determining whether the litigation privilege has been waived.



This standard of disclosure can understandably cause problems. One can easily envisage a scenario in which a client is claiming privilege with respect to a specific document or specific documents and that revealing the name of the document’s maker, the person receiving it, the date its made, or the subject of that document’s contents would have the effect of putting a practical end to the client’s claim of privilege. The need to balance the requirements of a description with the need to protect the integrity of a validly arguable claim for privilege was recently discussed in Husky Oil Operations Ltd. v. Saskatchewan, 2008 SKQB 286 (“Husky Oil II”):

[16] The Queen’s Bench Rules do not distinguish between the level of identification required for documents over which litigation privilege is claimed and those over which solicitor client privilege is claimed. For both categories, I accept the proposition that the Rules do not require a party to provide information that compromises the privilege. I also accept the proposition (although it was not explicitly advanced) that BJ Services is not required to identify documents over which it claims litigation privilege in such a manner that it would compromise a sustainable claim of solicitor client privilege by PSAC. It follows that the manner in which documents are to be disclosed should be determined by reference to the circumstances of the particular case.

It should be mentioned that BJ Services and PSAC were Third Parties that were represented by the same counsel. Similar positions have been taken in other jurisdictions. See, for instance, Creaser v. Warren (1987), 36 D.L.R. (4th) 147 (N.S.C.A.), where Clarke, C.J.N.S. sought to balance the requirements of a description with the need to protect the integrity of a validly arguable claim for privilege. In so doing, he made the following comment at p. 150:

In our opinion, this rule is not to be interpreted in such a way that, because documents are bundled, they are therefore exempt from “a short description of each document.” The description need not be so detailed that it discloses the contents of the document in a manner that would destroy its privilege. It must be sufficient to enable a court to make a prima facie decision whether a likely claim for privilege exists. Whether a judge goes beyond the description to examine the document is, of course, in the discretion of the court. It is difficult to lay down a hard and fast rule for every document. However, the description of



each document or series of similar type documents should have sufficient detail to reveal the nature of the documents to the opposing party and to avoid the necessity of frequent applications to the court for rulings.

Finally, in Husky Oil II, Justice Ball also made reference to the use of broad “boiler plate” descriptions of the types of documents which a party objects to produce. While he indicated that “boiler plate” descriptions of documents over which a party objects to produce might be sufficient (e.g., “originals of letters and other correspondence … which were sent to the addressee thereof on or about the date thereof”), circumstances may arise which require fuller and better disclosure in order for opposing counsel to properly challenge the objection. See paragraphs 18 to 20 of Husky Oil II. From the foregoing, the following list of rules would appear generally to apply to the standard of disclosure in preparing Schedule 1, Part 2 of a Statement as to Documents (disclosing and objecting to produce a document). This list is not exhaustive nor should any given rule be regarded as being mutually exclusive of another.

1. The description of a document should candidly describe the document it refers to.

2. As part of the description of a document, the essential facts supporting a claim to withhold production (i.e., referring to the dominant purpose for creating the document) shall be stated in order that it can be determine, on a prima facie basis, whether the document can properly be withheld from production, assuming the stated facts are true.

3. Where the name of a maker of the document is the subject of a special privilege, the name of a maker does not have to be disclosed if doing so would negative the privilege. An example of this would be correspondence with an expert consultant whose identity need not be disclosed until ten days prior to the pre-trial conference, assuming that person will testify at trial.

4. The description of documents does not have to go so far as to disclose the nature or particulars of documents in a way that would destroy a claim of privilege. In claiming privilege, the description of a document has to be sufficient to enable the evaluation of any claim to withhold production on the ground of privilege.



5. A claim of solicitor and client privilege must include a statement that the communications disclosed have a professional and confidential nature to support the claim to withhold production.

6. For correspondence that is styled “without prejudice” the content of the correspondence must be described or stated to such an extent that one can tell whether or not the substance of the letter falls within the rule of evidence rendering such communication inadmissible.

7. In some circumstances, relevant and producible documents may contain personal or confidential information about non-parties that may not be relevant to the matters at issue between the parties. In such circumstances, it may be appropriate to avoid naming that individual in the Statement as to Documents and produce an edited photocopy of that document with the irrelevant confidential information redacted. Orders for the disclosure and production of edited documents due to privacy rights of non-parties have been made in Saskatchewan: Popowich v. Saskatchewan (1995), 133 Sask. R. 27 (Q.B.). (Note: This case was decided pursuant to Rule 236(1) which provides a mechanism for a party to apply for an order for the production of documents relevant to the litigation by a non-party.) If a document is edited due to confidentiality concerns, it is vital that the fact that such editing has occurred is clearly communicated to all parties’ counsel. See also Szuch v. Brunsdon (2001), 202 Sask R. 146 (Q.B.) where confidential partnership information was ordered produced as relevant, but subject to strict conditions. Also in Wahpeton Canvas Co. v. Inland Plastics Ltd., [1995] 5 W.W.R. 107 (Q.B.) staged production of sensitive business information was ordered if the matter moved to trial.



The Lawyer’s Duty with Respect to the Obligation to Disclose

It goes without saying that the client’s obligation to disclose imposes a commensurate duty on the lawyer as an officer of the court, to assure that the obligation is carried out properly. This duty involves various aspects, including the following:

1. A duty to bring home to the client the nature and extent of the obligation to disclose so that the obligation may be fulfilled.

2. An obligation to disclose documents turned up after initial disclosure, even to the eve of trial or at trial.

3. A duty to cooperate with the court to clarify the record for the court if imperfect disclosure has occurred.

4. A duty to understand the business organization of the client where such understanding is necessary to fulfil the obligation for a careful search for the existence of disclosable documents.

5. A duty of candour in fairly describing documents whose existence must be disclosed.

6. An obligation to disclose relevant documents that may not have to be produced.

7. A duty to keep confidential (and instruct your client to keep confidential) and disclose only to persons who need to know, documents obtained through the compulsion of the discovery process (commonly referred to as the “Implied Undertaking Rule”).

8. A duty to withdraw as counsel for the client if the client will not cooperate in such a way that the court can be assured the obligation to disclose has been fulfilled.

The importance of properly advising clients about their documentary disclosure obligations cannot be overemphasized. Counsel should always bear in mind that, unless one is dealing with a Part Forty – Simplified Procedure matter, their clients do not sign the Statement as to Documents, the lawyer does.



While Saskatchewan’s recent jurisprudence emphasizes each party’s obligation to make a wide and exhaustive disclosure of documents in accordance with the “broad relevance” standard, it is possible to exceed the requirements of that standard in preparing a

Statement as to Documents. Occasionally, counsel’s reaction to the wide scope of the broad relevance standard has been to list absolutely every document they receive from their client with no consideration of whether the contents of each document are connected in any way with the issues between the parties arising from the pleadings.

The writers believe that a lawyer’s obligation with respect to documentary disclosure is to balance the requirements of the broad relevance standard with the requirement that for a document to be “broadly relevant” it must be connected in some manner with the issues between the parties and potentially advance or damage one of the parties’ positions. “Burying the other side in paper” regardless of whether all of the documents listed are relevant or not does not fulfil a lawyer’s duty to opposing counsel or to the court. However, it is submitted that where uncertainty exists as to the relevance of a document, given the stringent and broad disclosure standards imposed upon lawyers and their clients, lawyers would still be well advised to err on the side of disclosure.

Finally, lawyers should always be cognizant of the potential consequences of failing to make proper disclosure of documents. Our Court of Queen’s Bench in Auchstatter v. Froese (1995), 4 W.W.R. 716, in interpreting Queen’s Bench Rule 218, found that the rule forbids the use of privileged material at trial unless the claim for privilege has been abandoned. Further, Rule 218 requires counsel, after a point in the proceedings when his or her client’s strategy has been established, to disclose any previously undisclosed documents that counsel intends to rely upon. In the Court’s view, production prior to the pre-trial conference would be appropriate. Consequently, failing to disclose or waive a claim of privilege over a document that a lawyer wishes to use as evidence at trial at an appropriate stage of the proceedings can lead to difficulties for that lawyer in being able to use the document at trial.

Lastly, if a relevant document comes to your attention late in the day, even during appeal proceedings, its existence ought to be disclosed to opposing counsel immediately.



The Obligation to Produce

The obligation to produce documents is contained within Queen’s Bench Rule 214, which reads as follows:

Where notice to inspect documents has been given, the party giving such notice shall, at the time and place appointed, produce for the inspection of the party requiring same all such documents as are in his custody, possession or control and which he does not object to produce and shall permit such party to inspect the same and to make copies thereof, or shall, upon payment of the proper fees therefor, deliver to such party copies of all such documents as he may require.

It goes without saying that proper compliance with the obligation to produce requires the lawyer to understand the possible grounds for withholding the production of a document as well as the manner in which the claim to withhold production is to be asserted. The grounds for withholding production are matters dealt with by the common law in the statutory provisions relating to the rules of evidence, particularly touching upon claims of privilege, public interest immunity, etc. For the purpose of this paper it is assumed, with hopeful justification, that the students reading it are sufficiently familiar with the substantive grounds that they need not be dealt with here.

The issue of which party ought to bear any costs incurred in obtaining further and better production of relevant documents than opposing counsel originally provided frequently arises during the course of litigation. Often, the issue arises where a lawyer is requesting further and better production of documents by requesting an undertaking from an opposing party to produce further documents during examinations for discovery. The Court of Appeal recently clarified the law on this issue in Spencer, supra. The Court concluded at pp. 140-141 that the initial burden of producing relevant documents and any expenses incurred in doing so is properly borne by the litigant under whose power or control such documents exist, subject to the following exceptions:

… First, if the party adverse demands compliance with the Rule to disclose in a manner that is unjust or burdensome to the party who has power or control of the documents, the court may relieve that party of the cost of reproduction of the documents … Secondly, if the cost of reproducing documents



is inordinately high or the information sought is established to be of little relevance, the court can shift the burden of the costs of reproduction to the party seeking it … Finally, if the documents sought are primarily to support the adverse party’s claim or defence, the court may decide the party seeking the document should pay for the cost of reproduction …

Enforcement of the Obligations to Disclose and to Produce

Where a party contends that an opposing party has failed to comply with either the obligation to disclose or the obligation to produce a document for discovery, steps can be taken to enforce the obligation pursuant to Rule 215, which reads as follows:

215(1) If any party:

(a) neglects, refuses or objects to make discovery of documents as required by Rule 212; or

(b) has filed and served a statement pursuant to Rule 212 which statement is not satisfactory to a party entitled to be served with same; or

(c) shall in such statement so filed and served have made a claim to privilege in respect of documents referred to therein; or

(d) having been served with a notice under Rule 213 shall neglect or refuse to produce any document mentioned therein; or

(e) neglects to give notice to inspect or having given such notice neglects or refuses to produce such documents for inspection or to permit the solicitor for the other party to make copies thereof or to furnish such solicitor with copies thereof upon payment or tender of the proper fees in connection therewith; or

(f) offers production at a place elsewhere than the address for service except as otherwise provided;

then the parties so desiring production may apply to the court for an order requiring the other party to make production of documents or for further or better production or for inspection or determination whether documents in



respect of which privilege is claimed are in fact privileged and upon such application the court may make an order for production or inspection in such manner as may be just.

(2) If upon application any privilege is claimed for any document the court may inspect such document for the purpose of deciding as to the validity of the claim for privilege and to destroy all relevant evidence which may be adduced tending to establish or destroy such claim for privilege.

(3) Upon any application under this Rule, the court may permit cross-examination under oath of a party upon the original or any subsequent statement given pursuant to Rule 212.

For the most part, applications heard by the court pursuant to Rule 215 pertain to the production of documents. Having said that, there are certain circumstances in which it can also apply to the disclosure of documents, depending upon the statutory rules of evidence involved (e.g., section 35.1 of The Saskatchewan Evidence Act). Where an application has been brought, the onus is on the party seeking disclosure or production of documents to show that the documents are relevant. It is then up to the party objecting to disclosure or production to establish that the document falls into a narrow range of exections, including privilege, in order to avoid an order requiring disclosure and production: see Cousins v. Walsh (1992), 5 W.W.R. 277, 102 Sask. R. 217 (Q.B.) and Saskatchewan Government Insurance v. Medynski (Lakeland Towing & Astro Towing (P.A.) Ltd.), 2007 SKQB 394 (“Medynski”).

In Medynski, SGI made an application under Rule 215 alleging that the defendant had not discharged its full duty of disclosure and pointing out three areas where the defendant’s statement as to documents appeared to be deficient in light of the issues raised in the context of action. In particular, SGI argued that documents it would have expected to appear in the defendant’s statement as to documents had not been disclosed or produced. Relying on Rule 215, the Court held that SGI was entitled to further and better disclosure and production of certain information held by the defendant which was relevant to SGI’s action.

It has also become common practice for counsel to produce the documents in question for inspection by the Chambers judge for the purpose of deciding as to the validity of a party’s claim to withhold. However, at least one case has suggested that the court cannot go behind the Statement as to Documents and inspect the



material, itself, until the other party has shown grounds for doing so: HMW – Bennett & Wright Contractors Ltd. v. BWV Investments Ltd. (1992), 99 Sask. R. 282 (Q.B.). While some may regard this decision as being somewhat anomalous, it can lead to the inference that the party seeking production must present a good factual argument tending to suggest that the opposing side’s claim for privilege cannot be properly considered without the court having inspected the document.

Disclosure and Production of Electronic Documents

The manner in which individuals and businesses correspond and conduct business increasingly moves further from a paper-based system towards documents created, transmitted and stored electronically. This has a direct impact on the disclosure and production obligations that the law imposes on lawyers and parties. The law of disclosure and production must adapt to recognize the increasing prevalence of electronic documents and electronically stored information. It is now incumbent upon lawyers to consider what relevant electronic documents their clients may be obliged to disclose, and what relevant electronic documents they may wish to receive disclosure of from opposing parties.

The definition of “document” set out in Queen’s Bench Rule 211 is clearly not limited to paper documents. Rule 211 is framed as an “inclusive” rather than “exclusive” listing of the types of items that are considered documents in the civil litigation process. The reference in Rule 211 to “information” signals that the goal of the documentary disclosure and production rules is to allow an opposing party disclosure and production of all information that a party has rather than simply what paper documents each party has. The following is a partial listing of electronic or “non-paper” items that have been held to be subject to disclosure:

1. a tape recording: Pedigree Poultry Ltd. v. Sask Energy (1997), 156 Sask. R. 315 (Q.B.);

2. hard drives, computer disks, tape backups and the relevant content of “other information storing devices such as word processing equipment, electronic diaries and/or electronic notebooks”: Bank of Montreal v. 3D Properties Inc. (No. 3) (1993), 110 Sask. R. 302 (Q.B.); and



3. email correspondence: NRS Block Bros. v. Co-op Dev. Corp. (1994), 119 Sask.R. 279 (Q.B.), K.B.K. v. J.L.K., (2001) Sask. R. Uned. 249 (FD).

Information stored on CDs, DVDs, USB keys, cell phones, iPods, BlackBerries and other PDA’s are also subject to disclosure: see, for example, CIBC World Markets Inc. v. Genuity Capital Markets, [2005] O.J. No. 614 (“CIBC”). Courts have recently recognized that private user profiles on the popular Internet website “facebook” are discoverable and producible “documents”: see Leduc v. Roman, unreported, February 2, 2009, Ontario Superior Court of Justice.

The manner in which unprivileged electronic documents should properly be produced to an opposing party raises further issues. Some courts have held that producing printouts of electronic computer records is not sufficient because there is often embedded information contained in electronic documents that is also potentially relevant to civil litigation proceedings. That additional information is referred to as “metadata,” or data about data. Metadata is a “document”: see Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII). Examples of metadata include formulas in spreadsheets or “bcc” information that is not normally published on a printed email. Cases in which production of electronic documents in electronic format has been ordered include Reichmann v. Toronto Life Publishing Co. (1988), 66 O.R. (2d) 65 (Ont.H.C.), Cholakis v. Cholakis et al (2000), 44 C.P.C. (4d) 162 (Man. Q.B.), Adroit Resources Inc. v. Tres-Or Resources Ltd, 2008 BCSC 1211 and Spar Aerospace Ltd. v. Aeroworks Engineering Inc., 2007 ABQB 543, affirmed 2008 ABCA 47 (“Spar Aerospace”).

Mr. Justice Thomas Granger of the Ontario Superior Court commented as follows in the Lang Michener Supreme Court of Canada L@wletter, Issue No. 5 of 2004:

In the past we have looked to direct evidence and paper evidence to prove a case. With the changes in technology we must start to look at computer generated data. Electronic disclosure is the review of and production of data that was created in and stored in an electronic format. Today you should require that the documents be delivered to you in an electronic format. Why in an electronic format? Within an electronic document is a hidden mother lode of information i.e., the number of revisions, notes that were attached to the document and the revisions. This information will not appear on a photocopy scanned into a database but it is retrievable from the electronic version. If you get the



documents in an electronic format you will be able to put the documents in your searchable database. If your opponent delivers to you 10,000 pages of documents in a paper format it will take a tremendous amount of time to review each document. If on the other hand the 10,000 pages are in an electronic format you can have your software program search and organize the documents. In a courtroom you can instantly produce the document on a monitor for the judge or to impeach the witness. If counsel refuses to provide you with the electronic document as saved on the hard drive or server I would suggest you seek an order for the disclosure of the original document which is an electronic document. Why should you have to accept a copy of an original document that does not contain all of the data the original document contains?

Why you should not accept E-mail print outs:

1. BCC’s are not usually shown on the print out; 2. Lack of metadata; 3. Not all information on the e-mail may be printed

i.e., the attachments. 4. E-mails can be edited and if you have the electronic

version you may be able to find when it was edited.

An emerging issue in the electronic documents arena is counsel’s ability to make an application for the preservation, disclosure or production of electronic data early in the litigation process. The reason counsel may want to do so is that electronic data is often deleted routinely by organizations and individuals because of the limited storage capacity that computers have. At present, the writer is unaware of an application for such an order being attempted in Saskatchewan. However, interested readers are referred to the CIBC case, supra, where the applicant sought and received an Anton Piller order respecting preservation of electronically stored information on a variety of electronic storage devices. See also the California State Court of Appeal’s decision in Dodge, Warren & Peters Insurance Services Inc. v. Riley et al, unreported, February 5, 2003, (Fourth Appellate District, Division 2) where a plaintiff who was concerned about the potential deletion of relevant electronic documents obtained an injunction for the preservation of the defendants’ computer data via an ex parte application. The plaintiff’s concern was that the defendants’ computer data could be deleted or altered by normal use of the defendants’ computers and software even without malice on the defendants’ part. It is anticipated that applications of this nature will become more commonplace with the passage of time.



Attempts have been made in Canada to directly address the unique issues raised by discovery of documents in electronic form (“e-discovery”). Commencing in 2004, a sub-committee of the Task Force on the Discovery Process in Ontario developed Guidelines for the Discovery of Electronic Documents in Ontario (the “Ontario Guidelines”). The Guidelines follow and mimic in many respects the Sedona Conference Guidelines and Principles (the “Sedona Guidelines”) developed in the United States (most recently revised in 2005). Most recently, in January 2008, the Sedona Canada Working Group 7 released a finalized version of the The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”). The Sedona Canada Principles are an attempt to build on the Sedona Guidelines and the Ontario Guidelines and develop a set of universally acceptable principles addressing the disclosure and discovery of electronically stored information in Canadian civil litigation. The Ontario Guidelines may be accessed through the Ontario Bar Association (http://www.oba.org/En/pdf_newsletter/E-DiscoveryGuidelines.pdf)and the Sedona Canada Principles are available through the Sedona Conference webpage (http://www.thesedonaconference.org).

Both the Ontario Guidelines and the Sedona Canada Priniciples recognize that the discovery of electronic documents requires a different approach than the discovery of paper documents. Factors such as the volume of information, the storage and retrieval of archived or deleted information, the location of information (including metadata) and the review of information raise challenges not commonly encountered over the course of traditional paper-based document disclosure.

Both the Ontario Guidelines and the Sedona Canada Principles recognize the overarching principle of “proportionality”. E-Discovery obligations will be subject to a “balancing” of competing factors, and parties are advised to ensure that steps taken in the discovery process are proportionate taking into account: (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (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. The importance of the proportionality principle has been recognized by a number of courts in Canada, including by the Alberta Court of Appeal in Spar Aerospace, supra. As the Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery recognized, “Proportionality should be the most important



principle applied to all discovery. … Discovery is not the purpose of litigation. It is merely a means to an end. If discovery does not promote the just, speedy and inexpensive determination of actions, then it is not fulfilling its purpose.”

Under the Ontario Guidelines, electronic data is divided into three categories. Active data is data currently used by parties in their day-to-day operations. Archival data is data organized and maintained for long-term storage purposes and may require special equipment, software or the assistance of information technology professionals to retrieve. Backup data is data kept as a copy of system data in the event of a disaster and requires professional assistance before it is readable. Both the Ontario Guidelines and the Sedona Canada Principles provide that in most cases, only active data or readily accessible archival data are subject to disclosure and production. The rationale for this guideline is that such data is both the most relevant, and the least expensive to retrieve and produce.

The Guidelines impose an obligation to preserve electronic documents as soon as litigation is contemplated or threatened. In some cases, this may involve a suspension of a corporate client’s document destruction policy, which could involve instruction to a large number of employees. The Guidelines recognize that the preservation of all potentially relevant documents is unreasonable, so it may be useful for counsel to carefully detail the steps taken to secure document preservation in order to defend applications for further disclosure in the future.

A failure to meet the obligation to preserve may result in serious adverse consequences. Historically, the common law maxim omnia praesumuntur contra spoliatorem raised a presumption that a destroyed document was harmful to the case of the party required to produce it. The Saskatchewan Court of Appeal has recognized the spoliation principle, stating that “[s]poliation of relevant documents is a serious matter … A party is under a duty to preserve what he knows, or reasonably should know, is relevant to the action.” See Schatz v. Doust, 2002 SKCA 129 (“Schatz”). The principles in Schatz were applied in Brandon Heating & Plumbing (1972) Ltd. v. Max Systems Inc., [2006] M.J. No. 149, where the Manitoba Court of Queen’s Bench indicated that the only fair remedy in a case concerning spoliation of relevant electronic documents was dismissal of the plaintiff’s claim. There, the Plaintiff “willfully” and “carelessly” replaced computer hardware in the normal course of business after the action was commenced and relevant electronic documents were destroyed as a result. More recently, in Spasic v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699, the Ontario Court of Appeal determined that spoliation could constitute an independent tort



for limited purposes. The writer has yet to encounter a decision where spoliation amounted to an independently actionable wrong for which punitive or aggravated damages might be awarded. Serious consequences have been imposed in the United States, however. In Zubulake v. UBS Warburg 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y., July 20, 2004), Justice Shira Scheindlin held that UBS Warburg was liable for spoliation of e-mails and imposed an adverse inference instruction to the jury on that basis. In finding UBS Warburg liable for wrongful dismissal, the jury granted the plaintiff $29,000,000 in damages, including $20,000,000 in punitive damages.

For the purposes of document production, both the Ontario Guidelines and the Sedona Canada Principles provide that parties should strive to produce electronic documents and data in electronic format, as it provides more complete relevant information, facilitates the ability to search and review the documents, minimizes costs to the producing party, and preserves the integrity and security of the document.

As a result of the necessity of retaining expert forensic services to preserve and retrieve electronic documents, the costs of e-discovery are often far in excess of traditional paper-based discovery. Ordinarily, a litigant bears its own cost of reviewing and editing its documents, and the requesting party bears the cost of copying and production. The Ontario Guidelines and Sedona Canada principles acknowledge this general rule with respect to interim costs, but provide that it may be appropriate for a court to shift the interim costs of preservation and retrieval to the producing party. At a minimum, a litigant must carefully consider the costs implications of making broad and far-reaching e-discovery requests, as the costs may be partially or completely shifted to a requesting party that is ultimately unsuccessful.

The Ontario Guidelines and Sedona Canada Principles also recognize the heightened risk of inadvertent disclosure of privileged information during the course of e-discovery. As such, they recommend that litigants and their counsel agree at the outset of litigation how to protect privileged documents from inadvertent disclosure. One such method involves the use of clawback agreements, allowing a party to re-assert privilege over a communication after it has been disclosed.

More generally, the Sedona Canada Prinicples and Ontario Guidelines emphasize the need for counsel to “meet and confer” early in the litigation process to address each parties’ rights and obligations with respect to e-discovery. This process will often begin with a preservation letter to the party opposite, advising the party of imminent litigation and requesting preservation of



relevant material. The issues to be narrowed may include the relevant computer systems, the relevant time periods, which searches should be conducted to identify relevant materials, and the format for production.

It is important to note that the Ontario Guidelines and Sedona Canada Principles are, at present, a secondary source of guidance in relation to e-discovery rules. They are not binding on litigants in the same fashion as the Queen’s Bench Rules, nor do they offer the precedential value of prior decided cases. However, a number of decisions have made reference to the Ontario Guidelines (see, for example, Sycor Technology v. Klaer, 2005 CarswellOnt 7608 and Air Canada v. WestJet Airlines Ltd. et. al, 81 O.R. (3d) 48 (Ont. S.C.J.) and many United States decisions have referenced and applied the Sedona Guidelines. The proliferation of e-discovery requests in the near future should bring the impact of the Ontario Guidelines and the Sedona Canada Principles into sharper focus.

As already discussed, there is an obligation on all parties to list documents they once had in their possession pursuant to Rule 212(2)(b). When this obligation is applied to the electronic documents arena, interesting issues arise. For example, in addition to the concerns raised by the plaintiff in Dodge, supra, how does one deal with e-mail correspondence which grows in volume every year and is often deleted from computers without ever being printed, leaving no record of such documents’ contents? Aside from requesting all printed copies of such emails or seeking a novel injunction like the one awarded in Dodge against an opposing party, complying properly with your client’s obligation to disclose and ensuring you receive proper disclosure from opposing parties pursuant to sub-Rule 212(2)(b) will not be an easy proposition in future.

It should also be mentioned that one must be extremely careful when working with paper documents that have been scanned into electronic format and documents reproduced after being scanned into electronic format. Many electronic documents are not simple “picture” images of the original document. Often they have been processed with an Optical Character Recognition (“OCR”) program to allow counsel using litigation support software to conduct keyword searches within the produced documents. OCR’ed documents have a less than 100% accuracy rate in converting words in the original document to the searchable format, with the wording in the OCR’ed document being changed to whatever words or characters the OCR program believes it is reading. Care should always be taken to work with the original pre-scanned document outside of litigation support software applications.



Lastly, it should be noted that this area of law is evolving and further rule changes are virtually inevitable. In January of 2009 the Court of Queen’s Bench for Saskatchewan struck an ad hoc Committee on Electronic Discovery Rules to study and recommend the types of rules or practice directives that should be put in place to govern electronic discovery. The current members of the ad hoc Committee include Chief Justice Laing, Justice Grant Currie, Doug Hodson, Q.C., Rick Elson Q.C, Gary Zabos Q.C. and William Hood. Further developments in this are will be forthcoming in the future.

Readers are recommended to consult the attached PowerPoint presentation on Electronically Stored Information and E-Discovery for more information on this subject.

Use of Notice to Admit

Counsel should make note to pay attention to provisions of Rule 242 involving Notice to Admit Documents. Too often, the process is ignored and time is wasted at trial proving documents. There can be substantial cost saving and headache avoidance at trial if parties are able to come to an agreement on the authenticity of documents prior to the start of the trial. Of course a document must have been long disclosed prior to being listed on such Notice. It is also recommended that notice be served long before 10 days prior to trial; preferably shortly after the pre-trial so as to allow parties to consider their position.

Counsel should also consider discussing with each other the extent to which there can be agreement as to the facts contained in documents. In some instances there is a presumption, based on statutory authority, of the truth of contents unless specifically reputed. Counsel should discuss whether there is any issue over such contents and if not, again great cost savings can be had by coming to an agreement prior to trial to utilize documents in a manner acceptable to both sides. By way of example, if the purchase order says that 1000 feet of pipe was delivered on January 1st at a specified location for $25,000, and there is no dispute over this, then there should be no reason for a party to have to call witness to prove the same. This can be accomplished by a Notice to Admit Facts as well, but in the writer’s experience it is much easier to come to an agreement with counsel opposite on document management than admission of facts for trial.



Electronically Stored Information and E-Discovery
















































