Background & purpose of the system 1 basic institutions, processes, and players 3
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| DOCUMENTARY DISCOVERY
RCP r. 30.02(1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. Two step process: Decide if document is relevant to any matter at issue -> must be in the pleadings Determine whether or not the information is privileged -> 3 types or case-by-case under Wigmore test 30.01(a) defines “document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form Jones v IF Propco Holdings: documents include all kinds of things and in the modern age it will include all social media. In Jones, did not grant order to produce the private portion of FB account because the public portion demonstrated there was nothing relevant to the claim. Where there is private information, courts will weight breach of privacy against probative value of the intrusion Served and Disclosed in the form of an Affidavit of Documents as per (RCP r. 30.03(1)) which lists documents in their appropriate schedules: RCP r. 30.03(2)(a): Schedule A [producible]: documents in party’s possession/control/power that party does not object to producing RCP r. 30.03(2)(b): Schedule B [privileged]: documents that are or were in possession/control/power for which party claims privilege Don’t have to describe why you have it, but must give enough detail that the other party can challenge the privilege as appropriate. How much is required depends on the sophistication of the case (Apotex) RCP r. 30.03(2)(c): Schedule C [lost]: documents formerly in party’s possession/control/power, whether or not privilege is claimed, with a statement of when/how they were lost Apotex: given ballooning nature of discovery in modern age, disclosure can be electronic, sophisticated, etc. Party’s Certificate: affidavit is a sworn statement, client is under oath that they have brought everything forward Lawyer’s Certificate: lawyer has to certify that they have at least instructed client, but this often compels lawyers to go to actively help client understand their obligations and help in meeting them Grossman: “system is…in hands of lawyers” and the honour of the party as directed by the lawyers (RCP, r. 5.1-3.1) Judges are not there watching over to ensure everyone is acting appropriately (RCP r. 30.02(2)) Production: distinguish from obligation to “disclose” imposed by 30.02(1) on all parties; other side is entitled to production of all schedule A documents, and can fight over whether schedule B documents are properly held back or not Non-Parties: at discovery, can produce documents in possession of non-parties only with leave of the court (RCP r. 30.10) Continuing Discovery: discovery lives up to and into trial, obligation to keep record correct and update affidavit (RCP r. 30.07) Accidental omission is easily corrected, purposeful omission may involve costs or implicate professional obligations Deemed Undertaking: parties undertake not to use documents but for purpose for which they were disclosed (RCP r. 30.1) Remedial Powers of Court: costs or striking out the proceeding, discovery is an obligation Download 217.64 Kb. Share with your friends:
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