Associate
August 12, 2021
The Ontario Superior Court recently had to address an interesting question: “Are the search terms used to identify relevant documents producible?”
In Falsetto v. Salvatore Fillipo Falsetto a.k.a. Sam Falsetto et al., 2021 ONSC 4168 (CanLII), the plaintiff asked the defendant to disclose search terms used to identify documents relevant to the litigation. In making this request the plaintiff relied on Rule 29.1 regarding the parties’ duty to update the discovery plan and the requirement that the parties have regard to the Sedona Canada Principles Addressing Electronic Discovery when dealing with the discovery plan. The defendant, Sam Falsetto, refused to produce the search terms on the basis that search terms are created for the dominant purpose of litigation and thus should not be ordered to be produced. The defendant nevertheless conceded that search terms shared between parties in the context of discovery planning were not subject to privilege.
In its decision, the Court located and relied on an earlier decision of the British Columbia Supreme Court in Liquor Barn Income Fund v. Mather, 2011 BCSC 618 (CanLII), which addressed the issue directly. The Court agreed with the findings in the case that:
- where the parties cannot agree on search terms, they must fulfill their discovery obligations by selecting their own search terms;
- a party’s selection of search terms may disclose something about counsel’s approach or theory of the case, which has traditionally been subject to litigation privilege; and
- search terms may be producible if the requesting party establishes that document disclosure has been inadequate.
On this basis, the Court found that the only purpose of requiring a party to disclose its search terms would be to establish that the party has not made a diligent search of its records, and to order a more fulsome search. However, before requiring a party to undertake another search, it must be demonstrated that relevant documents may not have been disclosed. Rule 30.06 provides that a party must satisfy a court “by any evidence” that documents in a party’s possession, power or control may not have been produced before ordering the production of a further and better affidavit of documents. A party seeking disclosure of an opposing party’s search terms should thus, “at a minimum, raise doubt” as to the diligence of the other party’s search, and seek to establish that relevant documents may have been omitted. While the evidentiary threshold here was low, the plaintiff had provided no indication that the disclosure was inadequate. As a result, the motion by the Plaintiff to order production of the search terms was denied.
This decision is in line with another decision delivered earlier this month, Ceballos v. Aviva Insurance et al., 2021 ONSC 4695 (CanLII), that highlighted the importance of providing evidentiary support that the production was insufficient. In that case the Ontario Superior Court confirmed that “speculation, intuition or guesswork are insufficient” and that the existing test requires that there must be evidence that documents have been withheld before an order under Rule 30.06 is appropriate. That requirement, in turn, speaks to the desirability of involving experienced eDiscovery counsel who can conduct effective “gap analysis” to identify production deficiencies.
These recent decisions are important as they confirm that search terms are producible in particular circumstances so as to permit counsel to meaningfully challenge disclosure deficiencies.
Vladyslav (Vlad) Strashko is an Associate at Heuristica Discovery Counsel LLP. Heuristica has offices in Toronto and Calgary and is the sole national law firm whose practice is limited to eDiscovery and electronic evidence. Heuristica has considerable experience in investigations and disputes and recently became the first law firm in the world to be awarded RelativityOne Silver Partner status.
