June 11, 2018
In Schwoob v. Bayer Inc., 2018 ONSC 166 (CanLII), a product liability class action, the Ontario Superior Court of Justice ordered two non-parties affiliated with the defendant corporation to produce 2,900 documents that they had produced in a parallel U.S. class action proceeding.
The plaintiffs brought a claim against Bayer Inc. (“Bayer Canada”) and two affiliated companies, Bayer Healthcare Pharmaceuticals Inc. (“Bayer U.S.”) and Bayer Pharma AG (“Bayer Pharma”), in 2010, on behalf of women in Ontario who had taken certain prescription oral contraceptives. The claim alleged negligence in the design, testing, distribution, marketing and sale of the contraceptives, as well as failure to adequately warn of the risk of adverse consequences. The plaintiffs discontinued the claim against Bayer U.S. and Bayer Pharma, and, in 2013, the matter was certified as a class action against Bayer Canada pursuant to the Class Proceedings Act (see Ann Schwoob et al v. Bayer Inc., 2013 ONSC 2207 (CanLII)). A similar class proceeding had been commenced against Bayer U.S. and Bayer Pharma in the U.S., and the two companies had produced a total of 120 million pages of documents in that proceeding.
Bayer Canada produced 60,000 documents (400,000 pages) prior to oral discovery in the Ontario class action. The plaintiffs then brought a motion for an order for production of all of the documents in Bayer U.S.’s possession that had been produced in the U.S. class proceeding. The Superior Court of Justice determined the motion on the basis of the principles of relevance and proportionality in the production of documents, as set out in Rules 30 and 29, respectively, of the Ontario Rules of Civil Procedure.
In its analysis, the Court found that although a significant number of the documents produced in the U.S. proceeding would not be relevant in the Ontario class action, there were some classes of documents that were potentially relevant (for example, communications between Bayer U.S. and Bayer Pharma with foreign regulatory agencies regarding product safety) and that would not otherwise be produced by Bayer Canada under the Rules of Civil Procedure. While agreeing with the plaintiffs that Bayer Canada should not be able to avoid producing relevant documents because irrelevant documents might also be included, the Court made it clear that the plaintiffs’ request for an order for blanket production of all of the documents produced in the U.S. proceeding was inconsistent with the principle of proportionality:
What concerns me, however, is the sheer volume of documents that the requested production order would require, amounting to approximately 120 million pages. To put that volume of documents in some perspective, the 400,000 pages of documents the defence has already produced in the Ontario action pursuant to several rounds of document production is less than one per cent of the volume of documents produced in the U.S. proceedings. While it is helpful to the Plaintiffs’ position that those documents have already been compiled in electronic format, I agree with the defence that it would be incumbent on defence counsel to review those documents before production with respect to issues of relevance and privilege. As well, as indicated in the expert evidence before the court, the application of German/EU privacy law provides an added complication – it would apparently require reviewing and possibly anonymizing personal data in 48 million pages of documents produced by Bayer Pharma AG.
To meet the requirement that all documents relevant to any matter at issue in the Ontario class action in the possession, control or power of Bayer Canada and its affiliated corporations be produced (subject to privilege), while having regard to the principle of proportionality, the Court made a limited production order, requiring Bayer Canada to produce the approximately 2,900 documents contained in an exhibit list that had been prepared for use at trial in the U.S. proceeding. The list included a brief description for most of the documents, for example, “suspect adverse reaction report” or mention of interaction with a regulatory agency. The fact that the list had been prepared for use at a trial, together with a quick review of the descriptions of the documents, satisfied the Court that the order dealt with the concern that many irrelevant documents would be produced. With respect to the principle of proportionality, 2,900 was a relatively small number of documents when compared to the 60,000 documents Bayer Canada had already produced and it also appeared that many were likely to be short. Clearly, Bayer Canada would need significantly fewer resources to review 2,900 documents than it would have needed to review the 120 million pages of documents requested by the plaintiffs.
Finally, the Court disagreed with Bayer Canada’s position that the proper way to proceed was to take a “wait-and-see” approach – to begin the oral discovery process and then address unresolved issues through a separate motion. The Court was of the view that it needed to “jump-start” the production process for these documents. It did, however, delay the effect of the order for 90 days to provide Bayer Canada time to review the documents for relevance, privilege and compliance with German/EU privacy law before producing them.