Associate
November 8, 2021
In 2020, several US court decisions dealt with lawyers who failed to properly supervise the discovery process, for example by allowing their clients to “self-collect” records (see Equal Emp’t Opportunity Comm’n v. M1 5100 Corp., Civil No. 19-cv-81320-DIMITROULEAS/MATTHEWMAN (S.D. Fla. Jul. 2, 2020)) or not taking reasonable effort to ensure that the client produced all required documents (see Optronic Techs. v. Ningbo Sunny Elec. Co., Case No. 16-cv-06370-EJD (VKD) (N.D. Cal. Jun. 1, 2020)).
In the first example, the lawyer received a warning from the judge, but escaped sanctions because the discovery process was not yet complete. However, in the second example, sanctions were imposed for violation of the lawyer’s certification obligations under Rule 26 of the Federal Rules of Civil Procedure. All these decisions are based on the US Federal Rules of Civil Procedure (or local state equivalents) that require a lawyer representing a party to sign and certify that to the best lawyer’s “knowledge, information, and belief formed after reasonable inquiry” that the disclosure is “complete and correct as of the time it is made”. The same Rule 26 also states that the court must impose sanctions for violation of this Rule by a lawyer, as highlighted in Optronic Tech Inc. v. Ningbo decision.
Canada typically does not follow the same procedures. Currently only the Northwest Territories and Nunavut (Nunavut follows the rules of the Northwest Territories) have adopted the Form 12 “STATEMENT AS TO DOCUMENTS” that has the following words that need to be signed by the lawyer acting for the party:
According to the best of my knowledge and belief, the said [name of the party] has not now and has never had in his (or her or its) possession, control or power, or in the possession, control or power of any person on his (or her or its) behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing or any copy of or extract from any such document or any other document whatsoever relating to the matters in question in this suit or in which any entry has been made relative to such matters, other than and except the documents set out in the first and second schedules to this Statement.
Thus, at least in those two jurisdictions, it may be possible to argue that a lawyer is required to make some direct inquiry to ensure that the disclosure is complete and accurate.
As for the other jurisdictions, the Rules of Civil Procedure in Manitoba, New Brunswick, Prince Edward Island, Saskatchewan, British Columbia, Newfoundland, Ontario, and the Federal Court require a lawyer to certify on the affidavit or list of documents that the lawyer has explained to the client the necessity of making full disclosure of relevant documents. For example, in Ontario the Rule 30.03 (4) of the Rules of Civil Procedure states:
Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent, (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.
While the direct requirements may not be present in the rules or court forms in other jurisdictions, the lawyers there are subject to oversight from their respective law societies and rules of professional conduct. In general, lawyers have a professional obligation to inform the client of the obligations to make complete disclosure and to help to conduct discovery in a diligent and candid manner. For example, in Alberta when the Working Committee of Alberta Law Reform Institute examined the discovery process in 2002 it stated: “The Committee proposes that a certificate of counsel on the affidavit of records need not be implemented. Since counsel have a professional obligation to inform the client of the obligation to make complete disclosure, certifying that this has been done is redundant.”
While each province and territory has its own law society and applicable rules of professional conduct, the obligations can be generally summarized as follows:
- A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honorably and with integrity;
- A lawyer must be competent, which includes applying relevant knowledge, skills, and attributes in a manner appropriate to each matter undertaken on behalf of a client including investigating facts and using relevant technology;
- A lawyer must provide good quality service; and
- Sometimes a lawyer must be firm with the client (for example, when a lawyer has concerns about the client’s position on a matter) and a lawyer shall not assist in or encourage any dishonesty or omit to do anything that a lawyer ought to know would assist in or encourage any dishonesty.
In Ontario, the Rules of Professional Conduct specifically include discovery obligations for the lawyer:
5.1-3.1 Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate
(a) shall explain to their client
(i) the necessity of making full disclosure of all documents relating to any matter in issue, and
(ii) the duty to answer to the best of their knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal;
(b) shall assist the client in fulfilling their obligations to make full disclosure; and
(c) shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.
To conclude, it is certainly prudent for any person or company to seek assistance from the supervising lawyer to ensure that the person or the company fully understands its preservation and discovery obligations as soon as the litigation has commenced or as soon as the litigation is reasonably anticipated. Where particular expertise is required, firms such as Heuristica Discovery Counsel LLP can provide legal advice and services in various phases of discovery to the parties involved in litigation, arbitrations, regulatory proceedings, and investigations, including legal analysis of the evidence and applicable law, opinions on the defensibility and proportionality of the discovery process, assistance with preservation, collection, review, and production of the evidence.
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.
