Director, Document Review Services
January 29, 2018
Earlier this month, the Ontario Superior Court of Justice reviewed the general principles applicable to the redaction of relevant documents. In Qaddoura et al. v. Walkom et al., 2018 ONSC 20, the defendants brought a motion to compel the plaintiff to answer undertakings and refusals given at her continued examination for discovery.
The plaintiff’s claim related to injuries sustained in a motor vehicle accident and involved a significant claim with respect to loss of income and future care costs. The plaintiff undertook to provide the defendants with updated records from her family physician.
Plaintiff’s counsel redacted a portion of these records because they “pertained to legal advice regarding the client’s husband, and her husband’s religion”. The defendants’ counsel took the position that any settlement numbers could be redacted, but that all of the clinical notes and records should be produced.
Citing King v. Intact, 2017 ONSC 1647, Justice Leitch noted that “[t]he general rule is that relevant documents must be produced to the opposing party in their entirety without any redactions based on a unilateral opinion with respect to relevancy”. Portions of a relevant document cannot be redacted simply because those portions are not relevant, however, redactions are permissible where the specified portion is clearly not relevant and there is good reason why the information should not be disclosed.
For example, portions of a psychotherapist’s notes that would only embarrass and potentially prejudice the plaintiff, and that would serve no purpose in resolving the issues in the action, were permissible redactions in Dupont v. Bailey et al., 2013 ONSC 1336.
In the case at hand, the court ultimately found no basis for redaction, and ordered the records to be produced.
Where parties consider redactions necessary, they can incorporate terms for redaction of sensitive information into their discovery plan. Alternatively, parties can seek court orders to protect sensitive or proprietary business information.