There are several key reasons why counsel will have to work harder in obtaining document discovery. First, as noted earlier in this paper, the diminished breadth of the initial list means counsel can place less reliance than ever on opposing counsel’s duties in respect of production.
Second, the time limits on examinations will prevent counsel, in many cases, from conducting an oral fishing expedition. Consider the examination of a bank officer with a view to determining what policy documents existed at the time that loans were granted to a party to the action. An examination of the officer may take many hours, and require interim adjournments, to ascertain the existence of documents; and by the time they are produced, the time allotted for examination of the bank may have expired thereby preventing counsel from effective discovery on key issues of the case.
Third, there is no longer an automatic right to seek information by way of Interrogatories without consent or order.
In this author’s view, counsel should therefore:
- Be critical of the production received by opposing party.
- In appropriate cases, consult with an expert to ascertain what documents may be absent which are either directly relevant or may lead to a train of inquiry.
- Seek out other information from any available external sources as to what may have occurred in your action. This may or may not require an application under Rule 7-1(18), similar to the current R. 26(11), and could involve a Freedom of Information request, a review of public registries and internet sites. Discovery from third party sources will often shed light on what might be missing in the opponent’s production.
- After taking these steps, consider invoking the new Rule 7-1(11) to seek production of “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 7-1(1)(a). In making this demand, you must “identif[y] the additional documents or classes of documents with reasonable specificity and indicate the reason why” they should be disclosed.
- Diarize and follow up 35 days later pursuant to R. 7-1(12). This will involve a close assessment of any responsive supplemental list as well as objections to any questions not properly answered and the reasons therefore.
- Keep in mind that the discovery obligation continues and hold your opponent’s feet to the fire as the issues evolve and new documents become producible.
It is always a judgment call to determine how much documentary discovery to obtain before commencing examinations which can themselves be a rich source of information on the existence of documents not yet produced. Under the new Rules, counsel will have to carefully balance the quest for further production against the need to use limited discovery time effectively as effectively as possible.
There will therefore be increased motivation for counsel to use alternative means to maximize the opposing party’s disclosure. This author expects a resurgence in the use of Notices to Admit which are permitted as of right and avert the need to examine on non-contentious issues and to obtain admissions of authenticity for documents not emanating from the examinee’s own production. Traditionally, Notices to Admit have been served after the main examinations for discovery have been conducted. Counsel seeking to effectively target their examinations to contentious issues and to ensure completeness of document production should consider delivering a Notice to Admit early. If no response has been received within 14 days the recipient will be deemed to have admitted the facts and the authenticity of documents listed therein. Counsel should consider seeking admissions on the existence of different classes of documents which may appear missing from the initial production.
Interrogatories may also prove a valuable tool in identifying missing documents, although not traditionally used for this purpose. Under new Rule 7-3, Interrogatories require either consent or order of the Court. However, it is reasonable to expect courts will consider a party’s cooperativeness in responding to Interrogatories in their willingness to grant other case management orders such as an application to extend discovery time. Restricting the Interrogatories to factual matters will increase the prospect of obtaining consent. If you have delivered reasonable Interrogatories or Notices to Admit and they have not been answered responsively, or at all, you will have laid groundwork for an application to extend discovery time under new Rule 7-2(3).
For the reasons herein, parties seeking production under the new Rules will no longer be able to rely on their opponents’ duty to produce all potentially relevant documents. Clients and their counsel will have to work harder to identify documents or classes of documents, and to assert entitlement to have them produced.
In this author’s view, to uphold the integrity of our document production system, it is incumbent on our profession to consider the impact of the new Rule 7-1 on the obligations of counsel set out in the Boxer case and it would be regrettable if one of the consequences of rules aiming to increase efficiency and reduce cost was to reduce professional ethical standards and the confidence in courts correctly finding the facts in each case and applying the law to them.