This is the first in a series of posts on this subject.
The full version of the article is published in the Verdict,
a publication of the Trial Lawyers Association of B.C. .
New Rule 7-1 will replace existing Rule 26(1) by mandating a two-step process for obtaining discovery of documents. This will, no doubt, have a significant impact on counsel’s role in the discovery process and on legal ethics governing that role. It may well be that some of that impact is quite unanticipated by those who framed the new rule.
The eventual effect of the new rules and particularly of Rule 7-1 on professional responsibility is not yet known. As far as this author is aware, the substantive content of new Rule 7(1) is novel and has not previously been enacted in any other jurisdiction, although past rule changes and their interpretation in the United Kingdom may provide some guidance on the approach our courts may take in overseeing the new regime for production.
Current Rule 26(1): Production based on Relevance
The current Rule 26(1) requires production of documents that are or have been in a party’s possession or control “relating to every matter in question in the action”. This wording tracks the test set out in Compagnie Financiére du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which has been applied in British Columbia subject to certain reservations imposed by McEachern CJSC (as he then was) in a series of decisions in the early 1980s.