Cost-Effective Document Disclosure in Construction Arbitration

Senior Counsel

October 22, 2021

There are four rules-based approaches to document disclosure in legal disputes. From broadest to narrowest they are:

Relevant: Each party discloses all documents relevant to the issues in dispute.
Responsive: Each party discloses documents responsive to requests by the other party.
Material: Each party discloses only those documents that could have an impact on the outcome of the dispute.
Reliance: Each party discloses only those documents upon which it intends to rely.

Each of these approaches is often supplemented by two underlying principles: first, a party can always be ordered to produce a document the arbitrator deems relevant (which enhances fairness but expands disclosure), and second, all disclosure models may be subject to proportionality, so that the cost of disclosure does not overtake its value to the parties.… Read More

Discovery in the Yukon

Vladyslav (Vlad) Strashko

Associate

October 20, 2021

A recent decision, Chance Oil and Gas Limited v Yukon (Energy, Mines and Resources), 2021 YKSC 44 (CanLII) , provides a good window into the discovery process in the Yukon.

In this case, both sides filed applications to compel each other to meet their document discovery obligations. The plaintiff claimed that the defendant grossly under-produced by listing only 445 documents in its affidavit of documents. The defendant alleged that the plaintiff, in contrast, overproduced by listing over 34,000 documents, some of which were not relevant.

First, the court pointed that the expression “every document relating to any matter in issue in an action” relating to disclosure obligations in Rule 25 of the Rules of Court has been given a broad and liberal interpretation by the courts.… Read More

U.S. Court Shifts eDiscovery Costs to Plaintiff

Candice Chan-Glasgow, Director, Review Services and Counsel

August 28, 2020

In a rare cost shifting order out of the United States, Lawson v. Spirit Aerosystems (D. Kan. June 18, 2020), the Kansas District Court granted defendant, Spirit Aerosystems, Inc’s motion to shift the costs of a technology-assisted review to the plaintiff, Larry A. Lawson. This case is a helpful reminder to litigants that the eDiscovery process must be proportionate to the needs of the case and that pursuing unnecessarily broad requests can lead to cost consequences.

Lawson is Spirit’s former CEO who retired on July 31, 2016. … Read More

Calgary eDiscovery Seminar Series – Register Now!

We are pleased to announce that, beginning in mid-February, we will sponsor and teach an eight-part legal eDiscovery Seminar Series in downtown Calgary on the fundamentals of modern discovery practices, including developments in case law.

Unless it is a hand-written note, physical or oral evidence, all evidence is electronic. Over the last number of years, Canadian case law and procedural rules have changed to recognize this reality.

Recent developments can have a significant impact on litigation/arbitration and regulatory proceedings as well as on our professional obligations and responsibilities to provide clients with advice and strategy to effectively deal with electronic evidence in a defensible and proportionate manner.… Read More

Court Orders Non-Parties in Parallel Action to Produce Documents

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. … Read More

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