Master MacLeod (now Justice MacLeod) of the Ontario Superior Court of Justice has recently ruled on matters dealing with the complexity of electronic disclosure between two parties who had failed to agree on a Discovery Plan. In Thompson v. Arcadia Labs Inc., 2016 ONSC 3745, the plaintiff took issue with a number of matters relating to the disclosure of documents.
First, the parties had failed to reach an agreement on the form of the Affidavit of Documents, and in particular how the documents would be described. Master MacLeod provided strong guidance on this point, and confirms that a typical “Schedule A” listing the details of each document is not necessary, as long as the purpose and objective of the Rule is met, and the documents are functionally accessible and identified with precision. This aligns with common practice in Ontario, where parties regularly avoid the traditional list, and provide fully indexed and organized litigation support software load files instead.
Second, the Defendants had failed to produce documents, pointing the plaintiff to an on-line repository instead and, in effect, telling them to search through it for relevant records. Master MacLeod considered this the equivalent of a data dump, and required a more targeted and precisely identified production.
To deal with these and other deficiencies in the disclosure of documents, the parties were ordered to meet and confer and seek to co-operate having regard to the second edition of the Sedona Canada Principles (November 2015), failing which they are to seek further direction from the court.
This is a warning for parties who choose not to take the production of electronic records seriously. The Ontario Superior Court expects cooperation, and is prepared to insist on it.
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