In Thompson v Arcadia Labs Inc, the plaintiffs brought a motion for relief requesting, among other things, several orders related to discovery. The plaintiffs are consultants that provided services to the defendant cybersecurity firm.
The parties did not agree on a protocol for exchanging documents, which resulted in unilateral attempts to satisfy production obligations. Master MacLeod, as he then was, (Master MacLeod was recently appointed a judge of the Ontario Superior Court of Justice) found that parties cannot take a unilateral approach to production and that cooperation is critical for defensibility and proportionality.
During the course of their business relationship, the plaintiffs created documents for the defendants, which were uploaded to a website. The plaintiffs seek production of the “Google logs”, or other records showing when such documents were accessed or altered by the defendants. The defendants argued that the plaintiffs should access the information themselves, and did not list the Google logs in their affidavit of documents. The court ordered the defendants to produce the Google logs:
A party cannot avoid its production obligations by saying in effect “go and look for yourself”. The logs must be identified and produced by a means that is reliable and admissible and can be authenticated.
The defendant corporation’s work includes defence work for the government of Canada, and the parties failed to agree on how sensitive business information would be treated during discovery. Master MacLeod discussed the different ways commercially sensitive work may be protected, and stated that a party can seek to adopt any combination of the options but cannot refuse to make production. He stated:
Confidentiality may play some role in discovery planning and in a proportionality analysis. If the relevance, utility and probative value of the information appears low and the potential prejudice of producing the information appears high then the court will be hesitant to order production and likely will do so on strict terms.
The court made it clear that confidentiality is only warranted in exceptional cases, and that “the need for confidentiality should not be allowed to delay production obligations.” The defendants were invited to identify the documents which they believe should be subject to a confidentiality order and seek a court order prior to production.
The parties were ordered to engage in collaborative discussions having regard to the Sedona Canada Principles (November 2015) and to seek a case conference if agreement could not be reached.
