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Document Discovery: Applying the New B.C. Law Using the U.K.’s Experience

This is the fourth in a series of posts on this subject.
The full version of the article was published in the Verdict,
a publication of the Trial Lawyers Association of B.C.

The English Experience

In England, the courts in civil cases routinely make an order for document discovery, now called “disclosure”.  English rule Civil Procedure Rule (“CPR”) 31.5(1) provides that an order of the court to give disclosure is an order to give “standard disclosure”, unless the court directs otherwise.  CPR 31.6 identifies what documents are to be disclosed by way of standard disclosure, which are: (a) the documents on which he relies; (b) documents which adversely affect his own case or adversely affect another party’s case or support another party’s case; and (c) documents required to be disclosed by a relevant Practice Direction.  The concept of “standard disclosure” has been in place since 1999.

CPR 31.7 limits “standard disclosure” by providing that, when giving it, a party is required to make a “reasonable search for documents falling within rule 31.6(b) or (c)”.  In turn, factors relevant in deciding the reasonableness of a search include the following (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document ; and (d) the significance of any document which is likely to be located during the search.  These factors are similar to the proportionality tests which are the basis of the new British Columbia Rules of Court.   Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, she must state this in her disclosure statement and identify the category or class of document.  By rule 31.10 the list of documents much include a disclosure statement, which is in turn defined as a statement setting out the extent of the search that has been made to locate documents required to be disclosed and certifying that the maker of the statement understands the duty to disclose documents and that to the best of her knowledge she has carried out that duty.

A party who is dissatisfied with the extent of “standard disclosure” it has received may apply under CPR 31.12 for an order for “specific disclosure”, namely, an order that a party must do one or more of the following things: (a) disclose documents or classes of documents specified in the order; (b) carry out a search to the extent stated in the order; or (c) disclose any documents located as a result of that search.

Decisions of the English courts demonstrate that concerns over the extent of production are often outweighed by the proportionality concept.  In Nichia Corporation v. Argus Limited [2007] EWCA Civ 741 (C.A.), Jacob L.J.  confirmed how fundamentally the new CPRs have changed the traditional Peruvian Guano test:

I start with … the introduction of “standard disclosure”. Prior to the CPR the test under the rules was that any document “relating to any matter in question” was discoverable. The courts took a very wide view of what was covered by this. The test was laid down a long time ago when no-one had the quantities of paper they have now. In the very well-known Peruvian Guano case … Brett L.J. said:

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may–not which must–either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.

It is manifest that this is a much wider test than that for “standard disclosure.” I have a feeling that the legal profession has been slow to appreciate this. What is now required is that, following only a “reasonable search” (CPR 31.7(1)), the disclosing party should, before making disclosure, consider each document to see whether it adversely affects his own or another party’s case or supports another party’s case.

(emphasis added, except in the words “may” and “must” which are italicized in the original)

It is to be noted that although Jacob L.J.’s was in the minority as to the outcome of the appeal, his outline of the principles guiding interpretation of the CPRs was wholeheartedly endorsed by the majority.

Counsel’s role in making disclosure was considered by the Chancery Division in Digicel (St. Lucia) Limited et al v. Cable & Wireless Plc et al, [2008] EWHC 2522 (Ch.), where the application was for a more extensive electronic search to include specified keyword searches of the respondent’s documents database.  The court contrasted the respective roles of the solicitor and of the court, at para. 51:

It is right that the decision as to what is a reasonable search rests in the first instance with the solicitor in charge of the disclosure exercise. However, the Practice Direction makes clear that some parts at least of the process ought to be discussed with the opposing solicitor with a view to achieving agreement so as to eliminate, or at any rate reduce, the risk of later dispute… However, even if the Court can, in a proper case, be favourably influenced by the diligence and conscientiousness of an individual solicitor, in my judgment, the task of deciding what is required by a reasonable search is a task given to the Court by the wording of the Rules. This task can be carried out by the Court either in advance of the search being done or with hindsight, where a search has been carried out and its extent is challenged by the other party. I do not find any warrant in the language of the Rules or Practice Direction for Mr Nourse’s suggestion that the standard of review should be a judicial review standard of irrationality or the standard adopted by an appellate court reviewing the exercise of a discretion… [T]he solicitor in the first instance has the job of deciding what the extent of the search should be. That comment does not limit the scope of review by the Court in a case where the decision is challenged.

(emphasis added)

In carrying out that initial search, the Court of Appeal in Nichia Corporation cautioned in paras 46-7 against overdisclosure.  This caution was based on two objectives usually considered contradictory, saving money and getting at the truth:

It is wrong just to disclose a mass of background documents which do not really take the case one way or another. And there is a real vice in doing so: it compels the mass reading by the lawyers on the other side, and is followed usually by the importation of the documents into the whole case thereafter – hence trial bundles most of which are never looked at.

Now it might be suggested that it is cheaper to make this sort of mass disclosure than to consider the documents with some care to decide whether they should be disclosed. And at that stage it might be cheaper – just run it all through the photocopier or CD maker – especially since doing so is an allowable cost. But that is not the point. For it is the downstream costs caused by overdisclosure which so often are so substantial and so pointless. It can even be said, in cases of massive overdisclosure, that there is a real risk that the really important documents will get overlooked – where does a wise man hide a leaf?

(emphasis added)

It is possible under CPR 31.12 not only to apply for an order that the search be expanded, but also where the “applicant satisfies the court that such disclosure is “inadequate” or that the case is one where something more than standard disclosure is called for, for example, disclosure of documents which may lead to a train of inquiry with the consequence of producing documents which advance the applicant’s case or damage the respondent’s case”: Digicel, para. 36.  The profession is aided by a series of Practice Directions which form part of the CPRs and shed further light on the availability of such orders, the circumstances under which they may be granted, and the conduct of counsel.  For example, Practice Direction 5.5 provides as follows:

An order for specific disclosure may in an appropriate case direct a party to –

(1)               carry out a search for any documents which it is reasonable to suppose may contain information which may –

a)                  enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure; or

b)                  lead to a train of enquiry which has either of those consequences; and

(2)                disclose any documents found as a result of that search.

In summary, although at first glance the English system appears directed at restricting the search rather than the documents themselves, its courts have interpreted the CPRs as providing for limited initial production followed by expanded secondary production where warranted by the principle of proportionality.  This direction, and the admonition to counsel to avoid overdisclosure, provide greater opportunity for parties and their counsel to succumb to pressures against disclosure and to avoid responsibility for failure to produce relevant documents.  This risk was acknowledged by Lord Justice Rix in Nichia, at para. 72:

[It] would be against the interests of justice if documents known to exist, or easily revealed, which would harm a party’s own case or assist another party’s case need not be disclosed because of a blanket prima facie rule against any standard disclosure. Once such a principle of disclosure were known to hold sway, dishonest or cavalier litigants would reap an unmerited advantage, contrary to the interests of justice.

Furthermore, in this author’s view the directive that counsel vet all documents individually for relevance, when coupled with continuing disclosure requirements, could prove a crushing burden on B.C. practitioners if applied here.

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