The failure to meet and confer to establish a Discovery Plan prior to undertaking a lengthy and expensive e-discovery exercise can result in huge inefficiencies, including cost consequences. In Siemens Canada Ltd. v. Sapient Canada Inc.  O.J. No. 1930, the court found such a failure had resulted in wasted time and expenses on both sides. Applying Rule 29.1.05, Master Short also denied any costs to the successful party. In doing so, the Master found that the parties were the authors of their own misfortune by failing to accept the philosophy of the new Rules and failing to comply with the mandatory Discovery Plan requirement prior to production. Rather than meet and confer at the outset, the parties had embarked on the documentary discovery process without even sharing custodian or key word lists. The result: the plaintiffs produced more than 120,000 records – the defendants only 23,356.
Because it was clear that the defendants had not produced a large number of relevant documents, the plaintiffs proposed that the parties establish a Discovery Plan to clarify the scope of documentary discovery. When they could not agree on a Plan, the plaintiffs asked the court to create one. While the Master had concerns about whether it is reasonable or appropriate for the court to draft a plan for parties with experienced counsel and e-discovery experts available to them, he did so by following the Sedona Canada Principles. The Master also said he would meet with counsel after they had reviewed his determination in order to ensure that a reasonable approach is taken to obtain the information he ordered the defendants to look for.
In the words of Master Short: the broad and liberal default rule of discovery has outlived its useful life; proportionality must be seen to be the norm, not the exception – the starting point, rather than the afterthought. Meet early and confer about how to make production proportionate – or suffer the consequences.
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