Background & purpose of the system 1 basic institutions, processes, and players 3
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| Underlying purposes: Helps establish body of evidence to be used at trial; prevent surprise at trial; gains admissions for use at trial; define/ narrow issues; size up other side’s case (and your client’s case); size up witnesses; foster settlement
Grossman v Toronto General: designed to facilitate production, not frustrate it; thus frequently finds itself in tension with adversarialism Connection to professional responsibility: “The integrity of the system relating to production of documents depends upon the willingness of lawyers to require full and fair discovery of their clients.” Grossman v Toronto General “it becomes quickly clear to anyone setting out to practise in the Courts that "production" is open to serious abuse. The integrity of the system depends upon the willingness of lawyers to require full and fair discovery of their clients. The system is, in a sense, in the hands of the lawyers. The opportunity for stonewalling and improper concealment is there. Some solicitors grasp it. They will make only such production as can be forced from them. That is bad practice. It can work real injustice. It causes delay and expense while the other side struggles to see that which they had a right to see from the first. In such a contest the advantage is to the long purse. The worst consequence is that the strategy is sometimes successful, giving its perpetrators a disreputable advantage. The practice must be condemned. It if were widespread it would undermine the trial system.” : “documentary discovery” “examination for/oral discovery” (RCP r. 31) Discovery Plan (RCP r. 29.1): rule which requires the parties to address and agree upon an appropriate Discovery Plan RCP r. 29.1.03 reads”: (1) Where a party to an action intends to obtain evidence under any of the following Rules, the parties to the action shall agree to a discovery plan in accordance with this rule: 1. Rule 30 (Discovery of Documents). 2. Rule 31 (Examination for Discovery).... (3) The discovery plan shall be in writing, and shall include, (a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action;... (c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons;... and (e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action Proportionality (RCP r. 29.2): gives court power to limit ongoing discovery ((see apotex, jones). Costs start to mount at this stage, consider the value of the case RCP r. 29.2.03: factors to consider include: (a) the time required for the party or other person to answer the question or produce the document would be unreasonable; (b) the expense associated with answering the question or producing the document would be unjustified; (c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice; (d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and (e) the information or the document is readily available to the party requesting it from another source Example: Apotex v Richter: complex, sophisticated litigation with countless documents; lots of money at stake, changes proportionality requirements Here, the plaintiff, Apotex was a manufacturer and distributor of finished pharmaceutical products. Apotex claimed damages of 100 million dollars on the basis that it suffered delayed market entry with respect to its famotidine tablets; loss of sales; loss of goodwill; and loss of reputation in Hungary, the United States and Canada. Apotex sought damages from the Defendants (Ercros and Ritcher, two chemical ingredient manufacturers it contracted with) in respect of an alleged breach of an agreement for the supply of famotidine, as well as negligence, interference with economic interests, breach of fiduciary duty, breach of duty of good faith, injurious falsehood and conspiracy. The defendants moved for a further and better affidavit of documents, including a particularized privilege schedule, and production of all relevant documents in the power, possession and control of the plaintiff, Apotex. Apotex moved for assistance in the particularization and the provision of enhanced electronic access to Ercros’ productions. Apotex alleged that the DVD originally produced by Ercros did not sufficiently describe its documents and further, that Apotex had experienced difficulty in retrieving specific documents from it. Ercros then produced its documents in a Summation Briefcase to allow Apotex to import the documents directly into its own document management software. Apotex took the position that was insufficient. Master Short favoured Ercros, citing the new Rules of Civil Procedure, The Sedona Canada Principles®, and the test for proportionality. Ercros was granted the relief sought, while Apotex’s motion was dismissed. The provision of the Summation Briefcase was deemed sufficient in that Apotex had no further difficulties accessing the Ercros productions. Download 217.64 Kb. Share with your friends:
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