Discovery – Litigation #8

• Pleading (Statement of Claim and Defence):
  • The pleading phase initiates civil litigation. A plaintiff begins by filing a Statement of Claim, clearly stating their legal claims and demands. In response, the defendant must file a Statement of Defence or other appropriate responsive documents within a set timeframe. This document exchange defines the boundaries and scope of the litigation.
• Discovery (Evidence Collection and Information Exchange):
  • Following the completion of pleadings, litigation moves into the discovery phase. Here, each party collects relevant evidence, exchanges documents, and engages in examinations for discovery, oral questioning sessions designed to understand the opposing party’s evidence and arguments thoroughly. This stage ensures both sides fully grasp the factual landscape, promoting informed negotiation or trial preparation.

While evidencing occurs at both discovery and trial stages, the objectives differ significantly:

• During discovery, lawyers focus on assessing and understanding the opposing party’s evidence. Each lawyer’s task is essentially to reveal their “cards,” facilitating mutual understanding and paving the way for potential settlement or compromise.
• At trial, however, the primary audience shifts to the judge. Lawyers concentrate entirely on assisting the judge in determining the facts accurately and applying relevant law to these facts to reach a fair and just decision. In the Canadian legal system, judges have comprehensive authority to subpoena witnesses, including high-profile individuals such as the Prime Minister, if necessary, without anyone having the option to decline participation.

Under Ontario’s civil litigation rules, particularly Rule 29.1, parties must draft a discovery plan to streamline document discovery. Initially, the introduction of discovery plans aimed at efficiency, but in practice, they often add complexity and workload. Although informal agreements might seem tempting, especially with reasonable opposing counsel, foregoing a formal discovery plan can be risky. Therefore, it’s prudent to adopt an official discovery plan to mitigate potential issues.

Rule 29.1.03(3) mandates that discovery plans include:

• The intended scope of documentary discovery under Rule 30.02, balancing relevance, costs, and the significance and complexity of the issues involved;
• Dates by which each party must serve their Affidavit of Documents (Form 30A or 30B) under Rule 30.03;
• Details regarding timing, cost implications, and methods of document production by the parties and third parties;
• Names of individuals to be examined orally during discovery under Rule 31, along with expected timing and duration;
• Any other provisions intended to facilitate an efficient and cost-effective discovery process proportionate to the complexity and significance of the case.

“Proportionality” in discovery means that the effort and resources spent gathering and producing evidence must be reasonable relative to the complexity, importance, and potential outcome of the case. Courts use proportionality to ensure that no party is unfairly burdened by unreasonable demands for documents or information.

Ontario’s Rule 29.2.03 specifically instructs courts to consider:

• whether answering a question or producing documents requires an unreasonable amount of time;
• if the expense involved is unjustified;
• whether compliance would unfairly prejudice or disrupt the party’s case;
• if compliance would unduly slow down the litigation;
• if the requested information or documents can be more easily obtained elsewhere;
• whether producing the documents would result in an excessive volume, making the request impractical.

These proportionality rules were created to prevent “fishing expeditions,” a common tactic where lawyers would intentionally impose extensive, burdensome document requests or undertakings on the opposing party, forcing them to expend excessive time and resources on issues only marginally relevant to the actual dispute.

Relevance:
For documents to be produced in discovery, they must first be relevant to the issues raised in the pleadings.

Document:
A “document” in discovery does not merely refer to paper. According to Rule 30.01(1)(a), “document” broadly includes sound recordings, videotapes, films, photographs, charts, graphs, maps, plans, surveys, books of account, and electronic data and information.

Document in a Party’s Power:
Under Rule 30.01(1)(b), a document is within a party’s power if the party has the right to obtain the original document or a copy, and the requesting party lacks that right.

Affidavit of Documents:
The form of the affidavit of documents is specified by Rule 30.03(1):

• Form 30A is for individuals.
• Form 30B is for corporations and partnerships.

Both forms divide their contents into three schedules: A, B, and C. Simplified proceedings add an additional Schedule D.

Electronic Documents:
Electronic documents must be produced according to the Sedona Principles.

Ethical Obligation:
After production, a lawyer must certify to the court that they have clearly explained the disclosure obligations to their client.

Schedule A:
Schedule A lists documents that the party discloses and agrees to produce. Typically, the opposing party then specifies which documents they require, and the parties agree on how these documents will be produced (electronically or physically).

Schedule B:
Schedule B identifies documents the party discloses but refuses to produce due to claimed privilege (e.g., solicitor-client privilege). The documents listed must be described clearly enough for the opposing party to assess whether to challenge the privilege claim. If challenged successfully, the court may order these documents to be produced.

Schedule C:
Schedule C lists documents no longer in the party’s possession or control. While production of these documents is impossible, their prior existence and loss must be disclosed, such as lost contracts or wills.

Disclosure:
“Disclosure” involves identifying and informing the opposing party about documents relevant to the case. Parties must disclose all relevant documents they have, even those claimed as privileged, by listing them in their affidavit of documents. If the opposing party disputes a privilege claim, they can seek a court ruling.

Production:
“Production” is the actual process of handing over the disclosed documents to the opposing party or court. Production does not automatically follow disclosure; documents listed in affidavits are not produced until specifically requested or ordered by the court.

Parties’ Obligations:
Parties must produce every relevant document they possess unless privilege applies.

Non-parties:
Documents held by non-parties, such as medical records, may be requested or compelled through court orders under Rule 30.10.

Continuing Disclosure (Rule 30.07):
Discovery obligations continue throughout the litigation. If additional relevant documents are found later, they must be promptly disclosed and produced.

Deemed Undertaking (Rule 30.1.01(3)):
Information obtained through discovery is strictly for litigation purposes only and cannot be used externally, such as initiating new lawsuits or publicly disclosing information.

Broad Remedial Powers (Rules 30.06-30.09):
Courts have extensive authority to enforce compliance with discovery rules, including imposing severe penalties or even dismissing a party’s case for deliberate non-compliance.

Inspection of Property (Rule 32):
Lawyers may physically inspect disputed properties to clarify facts related to boundary or ownership disputes.

Medical Examination (Rule 33):
In personal injury and medical malpractice cases, defendants often require plaintiffs to undergo independent medical examinations, rather than relying solely on the plaintiffs’ submitted medical reports.

Simplified Procedures (Rule 76.03):
Discovery in simplified proceedings is subject to special rules designed to streamline and accelerate the litigation process.

Subsequently Discovered Documents or Errors (Rule 30.07):
If additional documents or errors in affidavits are discovered later, they must be disclosed and explained promptly. Parties cannot disregard newly found evidence, even if discovered after the initial disclosure.

Privilege in discovery typically covers solicitor-client privilege, litigation privilege, settlement privilege, and confidentiality privilege:

• Solicitor-Client Privilege:
  • Protects confidential communications between lawyers and clients intended for legal advice
  • It is absolute, permanent, and cannot be disclosed without client consent unless:
    • The innocence of an accused person is at stake
    • The communication is about committing a future crime or fraud
    • It is necessary to prevent imminent harm to public safety.
• Litigation Privilege:
  • Applies to documents primarily prepared for anticipated litigation.
  • It is temporary, ending once the litigation concludes.
• Settlement Privilege (“Without Prejudice”):
  • Covers communications made during settlement negotiations.
  • Note: simply labelling communications as “without prejudice” does not automatically grant privilege.
• Confidentiality Privilege (Wigmore Test):
  • Privilege based on case-by-case assessment, balancing confidentiality interests against the need for evidence.
• Marital Privilege:
  • Communications between spouses during marriage are privileged under the Ontario Evidence

Oral examination for discovery follows specific rules laid out predominantly in Rule 31. The form of examination is detailed under Rule 31.02, outlining procedural requirements to ensure clarity and fairness during questioning.

Under Rule 31.03(1), any party in litigation has the right to examine any other party “adverse in interest”, meaning those whose interests clearly conflict based on the pleadings. Importantly, this right isn’t limited merely to plaintiffs examining defendants or vice versa; it also applies to parties in crossclaims or counterclaims, provided their adverse interests are evident.

Special circumstances exist when examining entities like corporations or partnerships, governed by Rule 31.03(2)-(3). Since corporations and partnerships are “artificial persons,” the examining party selects which representative, such as an officer, director, or employee, to examine, although the choice must be reasonable. If the chosen representative appears unsuitable, the other party can propose an alternative; unless the request is unreasonable (e.g., demanding the CEO for a minor credit card dispute), this suggestion should typically be accepted.

For individuals under a disability, Rule 31.03(5) provides guidelines for examination. Generally, the litigation guardian is examined on behalf of the party under disability, though the party themselves may also be examined if competent. Special rules apply when the litigation guardian is the Children’s Lawyer or the Public Guardian and Trustee, requiring explicit leave from the court for examination.

Rules 31.03(6)-(8) outline examinations involving assignees, trustees-in-bankruptcy, and nominal parties. For instance, when an action involves a trustee in bankruptcy, both the trustee and the bankrupt may be examined to ensure thorough fact-finding.

A key limitation established under Rule 31.05.1 restricts oral examinations to a total of seven hours per party, unless otherwise agreed by the parties or authorized by court leave. This proportionality rule ensures efficiency and cost-effectiveness.

While parties to litigation can generally be examined without judicial permission, examining non-parties is exceptional and governed by Rule 31.10. Courts only grant leave when the third party holds critical information unavailable by other means. Unlike opposing parties, non-parties aren’t inherently involved in litigation, so courts carefully protect them from unwarranted intrusions.

The examination itself occurs under oath (Rule 34.08), recorded by a court reporter (Rule 34.02), who later provides a written transcript (Rule 34.16). Despite technological advances enabling examinations via virtual platforms like Zoom, procedural fairness and formalities remain unchanged.

Lastly, Rule 35 addresses written examinations—known as interrogatories. While prevalent in jurisdictions like England, written interrogatories never gained substantial popularity in Canada. Here, oral examinations resembling American-style “depositions” remain the preferred approach, allowing face-to-face questioning that more effectively tests credibility and clarity.

Contrasting these standard rules, simplified procedures under Rule 76.04 streamline discovery further, imposing a tighter limit of three hours for oral examinations and completely eliminating written interrogatories to expedite the litigation process.

Ensuring attendance at an oral examination is crucial. Even if a witness initially agrees to attend, formal steps are usually taken to guarantee their presence. Parties typically use a Notice of Examination (Form 34A), serving it on the opposing side after mutually agreeing on the time, place, and format of the examination. This formal notice legally obligates the witness to appear.

If there is uncertainty or potential difficulty securing attendance, a Summons to Witness (Form 34B) may be issued, compelling the witness to attend the examination. Additionally, Rule 34.07 addresses situations involving witnesses outside Ontario, outlining procedures to secure their attendance when essential for discovery.

Historically, the oral examination allowed lawyers significant leeway, often becoming extensive “fishing expeditions” into an opponent’s case. However, today’s approach under Rule 31.06 is markedly different, emphasizing proportionality.

According to Rule 31.06(1), a person examined must answer clearly and fully all proper questions that are relevant to the matters in issue, providing answers based on their knowledge, information, and belief. Questions cannot be objected to merely because the information sought constitutes evidence or because the questioning resembles cross-examination, unless it directly relates to witness credibility. Also permissible are questions about the opposing party’s affidavit of documents.

Representatives of corporations have an added duty, they must adequately inform themselves beforehand. It’s insufficient for a corporate representative to appear and simply say, “I didn’t see those documents or emails myself.” They are expected to be prepared, having familiarized themselves with relevant corporate knowledge. Nonetheless, questioning attorneys must remain respectful; examinations should never devolve into harassment or badgering of witnesses.

During oral examination, parties may, and indeed, should, seek disclosure of expert opinions relevant to contested issues. Rule 31.06(3) specifically allows questioning about an expert’s findings, opinions, conclusions, and identity. However, disclosure is not obligatory if two conditions are met:

1. The expert’s work was solely prepared for anticipated or ongoing litigation.
2. The examining party commits not to call this expert as a trial witness.

Simply put, while expert insights are usually discoverable, they remain confidential if specifically prepared for litigation and if the expert is not intended to testify at trial.

Certain objections are appropriate during an oral examination. Lawyers should promptly object to questions that are oppressive, inappropriate, or constitute obvious traps, such as the classic misleading question: “When did you stop beating your wife?”

Similarly, objections are justified when questions amount to improper “fishing expeditions,” or when they inquire beyond the witness’s competence, expertise, or knowledge, or delve improperly into pure matters of law.

Under Rule 31.08, counsel may directly answer procedural or simple factual questions (such as confirming dates), particularly when representing corporate parties. In these cases, the lawyer’s response is treated as if it were the client’s own answer.

Additionally, the obligation for continuing discovery (Rules 31.09 ) applies. If witnesses subsequently discover new responsive information or realize earlier answers were incorrect or incomplete, they must promptly inform the opposing party and correct the record. Witnesses cannot conceal new knowledge simply because they lacked it during the initial examination.

Oral examination is not just a procedural step, it’s a strategic tool for trial preparation. Specifically, discovery transcripts can be employed in trial in several impactful ways:

• Reading into Evidence:
  • Parties can read admissions made during discovery directly into the trial record, making them part of the evidence presented to the judge.
• Impeachment of Witness:
  • If a witness’s testimony at trial contradicts statements made during discovery, the transcript can be used to impeach the witness’s credibility. Typically, the initial statements given under oath during discovery are considered more reliable.
• Unavailable Witness (with Court Leave):
  • When a witness examined during discovery later becomes unavailable, due to illness, death, or other extraordinary circumstances, discovery transcripts can be admitted at trial with the court’s permission.
• Deemed Undertaking and Motions:
  • While the information from oral discovery is subject to the deemed undertaking rule (preventing its use for unrelated purposes), transcripts may become publicly accessible if filed during pre-trial motions. For instance, during motions to compel answers, the transcript can enter the public record. A notable example was seen in a recent defamation case against Fox News, where evidence from discovery became publicly accessible due to motions filed by the defendant.