Posts Tagged ‘Rule 7-1’

This is the fifth and final post in a series of posts on this subject.
The full version of the article will be published in the Verdict,
a publication of the Trial Lawyers Association of B.C.

There are several key reasons why counsel will have to work harder in obtaining document discovery.  First, as noted earlier in this paper, the diminished breadth of the initial list means counsel can place less reliance than ever on opposing counsel’s duties in respect of production.

Second, the time limits on examinations will prevent counsel, in many cases, from conducting an oral fishing expedition.  Consider the examination of a bank officer with a view to determining what policy documents existed at the time that loans were granted to a party to the action.  An examination of the officer may take many hours, and require interim adjournments, to ascertain the existence of documents; and by the time they are produced, the time allotted for examination of the bank may have expired thereby preventing counsel from effective discovery on key issues of the case.

Third, there is no longer an automatic right to seek information by way of Interrogatories without consent or order.

In this author’s view, counsel should therefore:

Read the rest of this entry »

Tags: document discovery, New Rules, Rule 7-1

This is the fourth in a series of posts on this subject.
The full version of the article was published in the Verdict,
a publication of the Trial Lawyers Association of B.C.

The English Experience

In England, the courts in civil cases routinely make an order for document discovery, now called “disclosure”.  English rule Civil Procedure Rule (“CPR”) 31.5(1) provides that an order of the court to give disclosure is an order to give “standard disclosure”, unless the court directs otherwise.  CPR 31.6 identifies what documents are to be disclosed by way of standard disclosure, which are: (a) the documents on which he relies; (b) documents which adversely affect his own case or adversely affect another party’s case or support another party’s case; and (c) documents required to be disclosed by a relevant Practice Direction.  The concept of “standard disclosure” has been in place since 1999.

CPR 31.7 limits “standard disclosure” by providing that, when giving it, a party is required to make a “reasonable search for documents falling within rule 31.6(b) or (c)”.  In turn, factors relevant in deciding the reasonableness of a search include the following (a) the number of documents involved; (b) the nature and complexity of the proceedings; (c) the ease and expense of retrieval of any particular document ; and (d) the significance of any document which is likely to be located during the search.  These factors are similar to the proportionality tests which are the basis of the new British Columbia Rules of Court.   Where a party has not searched for a category or class of document on the grounds that to do so would be unreasonable, she must state this in her disclosure statement and identify the category or class of document.  By rule 31.10 the list of documents much include a disclosure statement, which is in turn defined as a statement setting out the extent of the search that has been made to locate documents required to be disclosed and certifying that the maker of the statement understands the duty to disclose documents and that to the best of her knowledge she has carried out that duty.

Read the rest of this entry »

Tags: document discovery, New Rules, Rule 7-1

This is the third in a series of posts on this subject.
The full version of the article was published in the Verdict,
a publication of the Trial Lawyers Association of B.C. .

In this author’s view, the new Rule 7-1 will place greater burdens on counsel of a party seeking production to identify which documents might exist so that it can be in a position to trigger Rule 7-1(11).  Counsel will have to work harder and smarter in preparing clients’ cases.  Failure to do so may lead to concerns, both for counsel and for clients, as to whether an appropriate standard of care has been met.

Read the rest of this entry »

Tags: document discovery, New Rules, Rule 7-1

This is the second in a series of posts on this subject.
The full version of the article was published in the Verdict
a publication of the Trial Lawyers Association of B.C.

For the litigant seeking production, in addition to having to decide whether the cost of seeking production is worth the risk, a further potential difficulty posed by the shift in onus is that the party may not even be aware of the existence of the documents or classes of documents, let alone being in a position to identify them with reasonable specificity.  Let us consider two litigation fact scenarios:

1. Estate case – undue influence / testamentary capacity – Liability
2. Breach of confidence

Scenario 1:  Estate case – undue influence / testamentary capacity – Liability

Consider an estate case involving allegations of undue influence and lack of testamentary capacity.  Anyone who had significant exposure to the deceased during the relevant time period may be an important witness at trial.  The identities of those witnesses may be found on many documents other than the obvious, including family letters, emails, party invitations, paper or electronic diaries, or a hundred other kinds of documents.

Under current Rule 26, counsel for the executor acting in accordance with their duty will have explored with the client the existence of such documents and caused them to be produced if they contained the names or other information leading to the identification of such witnesses.  Under new Rule 7-1 there will be no such assurance, since defense counsel’s job will, in my view, be limited to questioning the client on the existence of documents which “could be used at trial to prove or disprove a material fact”, excluding documents which may lead to a “train of enquiry”.

Scenario 2:  Breach of confidence

This scenario is a variation on the facts in Lac Minerals v International Corona Resources Ltd. [1989] 2 S.C.R. 574.  Company A approaches company B with confidential information on a mining property, with a view to striking a collaborative business agreement.  No deal is struck, and B uses the confidential information for its own benefit.

In this case, the relevant facts will include details of the “pitch” made by A; the nature and extent of information provided to B; any conditions on the use of the information applied by A when making its pitch; and the circumstances under which B received the information.

After receiving the information, B met with a number of prospective geological engineering firms to act as B’s consultant.  During these meetings, B advised the firms of the approach by A.

In this author’s view, under current Rule 26, B would be required to produce:

1. faxes or emails sent to the prospective consultants inviting them to meet.
2. interoffice memos among B’s representatives referencing these meetings.

Under new rule 7-1(1) (Step 1), production of these documents would not likely be required as they could not by themselves “be used by any party of record at trial to prove or disprove a material fact”. It is not the documents, but the meetings to which they refer, which provide evidence which at trial may be used “to prove a material fact”.  However, their production could lead A’s counsel to question or subpoena the consultants’ representatives whose evidence as to what was told to them by B could be critical in proving A’s case.

Read the rest of this entry »

Tags: document discovery, New Rules, Rule 7-1

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.

Read the rest of this entry »

Tags: document discovery, New Rules, Rule 7-1