In this author’s view, the new Rule 7-1 will place greater burdens on counsel of a party seeking production to identify which documents might exist so that it can be in a position to trigger Rule 7-1(11). Counsel will have to work harder and smarter in preparing clients’ cases. Failure to do so may lead to concerns, both for counsel and for clients, as to whether an appropriate standard of care has been met.
Just as importantly, in some cases there will be uncertainty as to the role of counsel making production, and the role of counsel as discussed in Boxer, supra, will accordingly require reconsideration. Consider this key requirement from Boxer:
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.
Under the existing rule, practitioners’ role in “policing” their clients’ conscience is straightforward. We begin by advising that all potentially relevant documents must be produced, including and especially those which the client may perceive as detrimental. We identify the key issues raised by the pleadings and discuss with our clients what classes of relevant or potentially relevant documents may exist. We then receive the documents and vet for privilege. If there is uncertainty as to relevancy, almost without exception we follow the rule “if in doubt, produce”. And in the extreme case where a client refuses to produce relevant documents, we will resign from the case.
Commencing July 1, counsel’s role will change. The lawyer will advise her client that only documents which meet the new standard must be produced at the initial stage. This will make it much more tempting for clients to withhold from their own lawyer documents harmful to their case. It may lead as well to issues as between client and counsel as to which of the documents the client does provide must be listed. Inevitably, in this author’s view, clients will exert pressure on counsel in circumstances where the line between production and non-production will not always be clear. In some cases they may insist that their lawyers not make production of documents of which counsel are aware but that the clients consider confidential or not “directly relevant.” Similarly, counsel may choose to adopt an “aggressive” approach to document listing and production that undercuts the traditional role of lawyers as officers of the court. The adversarial system is premised on an assumption that if both sides to a dispute present their cases to what they see as their best advantage and are given an appropriate opportunity (through discovery and cross-examination) to test their opponent’s case, it is more likely that the court will be able to find the truth and come to a just result. If any part of that equation is constrained, the risk increases that the facts will not be correctly established and the judgment in the case may therefore be different.
These scenarios have the potential to place counsel in a quandary which does not exist in today’s clearer world. If they produce documents which prove not to be producible under R. 7-1(1), they may be guilty of breaching their client’s confidence; yet if they decline to produce they may breach their duty as officer of the court. Less scrupulous counsel may argue, “well, they can ask for it under the second step”. If questioned later on, such counsel may assert that “reasonable people” may differ on whether production under R. 7-1(1) was mandated or whether the documents could be left for R. 7-1(11). What comes from this is an understanding that the new rules appear likely to increase the prospect of games being played and the truth suffering. How to counteract that will be for each counsel to assess in each case, based on such factors as the reputation of opposing counsel and an assessment of the opposing party and its inclination to try to use the rules to subvert the discovery process.