Striking a balance between providing too little or too much documentation in support of one’s legal arguments requires planning.
A recent decision by the Ontario Superior Court of Justice demonstrates the dim view taken of the overproduction of documents in a dispute. Going beyond what is both reasonable and relevant to the case can have consequences sometimes measured in dollars and cents.
As part of a three-way civil action involving Walsh Construction Company Canada, Gowing Contractors Ltd. and Zurich Insurance, legal counsel for Walsh produced over one million records from November 2021 to August 2022 as part of an agreed discovery plan. In contrast, Gowing produced 140,000 documents.
As described by McCarthy Tetrault LLP associates Ivan Merrow and Ariane Monjauze, and summer student Nicholas Geringer, a trial management conference had taken place months earlier in March 2021. At that time, Associate Justice Wiebe had asked that, “the parties agree on a discovery plan that dealt with electronic collection and production of records. Specifically, the plan was required to identify the custodians the parties would collect documents from and the search terms used by either party to find relevant documents.”
The parties had not been able to agree on a discovery plan up to that point, despite previous deadlines imposed by the court. After Zurich Insurance Group brought in its own legal representation, the court was told that a plan had finally been agreed to.
However, the agreed plan was not specific, with the parties suggesting document relevance would be “defined by the pleadings.”
There were other issues related to the Justice’s specific instructions.
“Contrary to the procedural order, the parties did not agree on lists of custodians to collect documents from, nor any search terms that would be used to identify relevant documents within those collections,” write Merrow, Monjauze and Geringer.
However, reference was made to the Sedona Canada Principles and the principle of proportionality.
There were continual complaints and disagreements concerning compliance and requests for deadline and discovery extensions. A trial management conference and mediation failed to resolve the matter.
As Michael Ross, an associate with electronic discovery and evidence firm Heuristica, writes, counsel for Zurich then took over as legal representatives for Gowing as well. They wrote to Walsh’s counsel, criticizing the production of numerous irrelevant documents. In reply, Walsh’s counsel said that their client had chosen an “error bias in favour of inclusion.”
Gowing brought in a lawyer specializing in e-discovery. Over 40 hours were spent reviewing Walsh’s document production. Of the over one million documents submitted by Walsh, some 270,000 documents were deemed irrelevant, representing 25 per cent of Walsh’s total production.
Associate Justice Wiebe considered the question, “Did Walsh overproduce irrelevant documents?”
“While there will always be some small level of irrelevant documentation in a large production set, such a large amount of irrelevant document production is egregious. It is the primary function of the producing party to do the work of deciphering what documents in its power, possession and control are relevant, and to produce them with an affidavit of documents,” he wrote. “In my view, Walsh clearly breached that obligation. That this happened suggests at minimum that Walsh failed to apply proper search protocols.”
The justice rejected explanations from Walsh’s counsel that the discovery plan agreed to was left vague and therefore it was fair to, “err in favour of inclusion.”
After all, they argued, since the productions were electronic, both Zurich and Gowing, “could weed out the irrelevant documents with their own searches.”
Much time was wasted throughout the entire case management process and sorting through the massive amounts of documentation, resulting in a cost penalty for Walsh.
“The court ordered Walsh to pay Gowing and Zurich $52,886 in costs thrown away and to produce a further and better affidavit of documents, omitting irrelevant documents,” writes Ross. “Parties need to make concerted efforts to remove irrelevant documents from their production set. As in this case, failure to do so can result in significant cost consequences.”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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