New Rule 7-1 will replace existing Rule 26(1) by mandating a two-step process for obtaining discovery of documents. This will, no doubt, have a significant impact on counsel’s role in the discovery process and on legal ethics governing that role. It may well be that some of that impact is quite unanticipated by those who framed the new rule.
The eventual effect of the new rules and particularly of Rule 7-1 on professional responsibility is not yet known. As far as this author is aware, the substantive content of new Rule 7(1) is novel and has not previously been enacted in any other jurisdiction, although past rule changes and their interpretation in the United Kingdom may provide some guidance on the approach our courts may take in overseeing the new regime for production.
Current Rule 26(1): Production based on Relevance
The current Rule 26(1) requires production of documents that are or have been in a party’s possession or control “relating to every matter in question in the action”. This wording tracks the test set out in Compagnie Financiére du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which has been applied in British Columbia subject to certain reservations imposed by McEachern CJSC (as he then was) in a series of decisions in the early 1980s.
In Peter Kiewit Sons Co. of Canada Ltd. v. British Columbia Hydro & Power Authority (1982) 36 B.C.L.R. 58, 134 D.L.R. (3d) 154, 26 C.P.C. 221 (S.C.) his Lordship qualified the broad Peruvian Guano test where the plaintiffs sought the disclosure of vast quantities of documents that were of only questionable potential relevance. His Lordship held that at para. 22:
I respectfully decline to follow the Peruvian Guano case, supra, or slavishly to apply R. 26(1) in a case such as this, where thousands or possibly hundreds of thousands of documents of only possible relevance are in question. I do not intend to suggest, however, that the Peruvian Guano case does not correctly state the law in most cases. That question does not arise for consideration here.
This approach was cited with approval by the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board (1992) 71 B.C.L.R. (2d) 276, 10 C.P.C. (3d) 109, 96 D.L.R. (4th) 227 and again recently in William v. British Columbia 2009 BCCA 77, 266 B.C.A.C. 207.
Counsel’s Role in Production under Current Rules
Until now, the role of counsel in production of her client’s documents has been of utmost importance to the soundness of the litigation process.
In Boxer v. Reesor(1983) 43 B.C.L.R. 352 (S.C.), Mr. Justice McEachern discussed the role of counsel in connection with production (at para. 20):
The responsibility of a solicitor in connection with the preparation of a list of documents has often been stated. I regard the following extract from Fraser and Horn, The Conduct of Civil Litigation in British Columbia (1978), vol. 1, pp. 276-77, to be an accurate statement of the law except that in this province we do not require an order for production and lists of documents are no longer verified by affidavit:
Nowhere in civil procedure is the responsibility of the lawyer greater than in the area of discovery of documents.
This is partly because the lawyer’s concept of relevancy is ordinarily more extensive than that of the client. It seems rarely to occur to a litigant that such things as cancelled cheques, receipts, birthday cards, telephone bills and the like might have a bearing on the case. A kind of documentation which a client notoriously fails to produce, unless specifically asked to do so by his lawyer, is the interoffice memo, sometimes a rich and critical source of information.
Additionally, the litigant, owing no special duty of loyalty to the integrity of the judicial system, may be unenthusiastic about disclosing the existence of documents harmful to his case. As an officer of the Court, the lawyer has the responsibility to police the conscience of his client in this area.
The process of discovery of documents tends to pinch most, as one might expect, where the party from whom discovery is sought has numerous records to go through. The task of persuading a client to undertake this duty faithfully can be considerable. Careful attention should be paid to — and the client questioned about — documents which have, either innocently or corruptly, passed out of his possession, by destruction or otherwise.
New Rule 7(1): A Two-Step Process for Production
New Rule 7-1(1)(a) appears an attempt to build and expand upon the Peter Kiewit limitation on producibility. Commencing July 1, 2010 production will only be immediately required of documents:
“…that could, if available, be used by any party of record at trial to prove or disprove a material fact” (emphasis added).
This threshold has been referred to by the Honourable Mr. Justice Macaulay, Chair of the Supreme Court Rules Revisions Committee, as that of “direct relevance”.
This new test will inevitably limit the classes of producible documents at this stage, particularly documents which may lead to other documents or may disclose the identity of witnesses but which, by themselves, cannot be tied to an allegation contained in the pleading.
To obtain production of such documents which could lead to a train of inquiry, or which could not be used at trial, it will be necessary to invoke the new Rule 7-1(11) which basically restates the current test, but with the onus shifted to the party seeking production:
If a party who has received a list of documents believes that the list should include documents or classes of documents that relate to any or all matters in question in the action but that are additional to the documents or classes of documents required under subrule (1) (a) or (9), the party, by written demand that identifies the additional documents or classes of documents with reasonable specificity and that indicates the reason why such additional documents or classes of documents should be disclosed, may require the party who prepared the list to [prepare and serve a supplementary list of documents.]
Despite the apparently broad language of new Rule 7-1(11) which permits the receiving party to “require” the producing party to prepare and serve a supplementary list containing the specified documents or classes of documents which “relate to any or all matters in question in the action”, there is no positive duty on the party to produce all of these documents. It is a simple matter to refuse and to await a motion to compel production. That will, undoubtedly, become standard fare. The party seeking production will then have to make a determination whether the cost of bringing an application and the costs that may arise on losing such an application are worth the effort to acquire the documents alleged to exist, be in the other party’s possession, to be relevant and yet not to have been produced. If such an application is brought, the new rule leaves the door open for the court to continue balancing the right to obtain access to documents which may help to prove one’s case, with the cost of producing vast quantities of documents which may be only of marginal relevance.
While the purpose of the two-step process would appear to be the streamlining of the litigation process, a number of issues do arise for consideration. These issues are both litigation- and practice-related.
 At a seminar on the new Rules at which this author and Mr. Justice Macaulay, among others, served as panellists.