Law Times

Law Times • December 1, 2014 Page 11 www.lawtimesnews.com Proportionality debate Lawyers continue to grapple with tricky concept By arshy mann Law Times ince the principle of proportionality became part of the Rules of Civil Procedure in 2010, it has become a key feature of litiga- tion practice in Ontario. The changes were a result of a 2007 report by former Ontario associate chief justice Coulter Osborne on civil justice reform. "The civil justice system somehow has to recognize the principle of proportionality as having a broad application to all civil proceedings, so that courts and parties deal with cases in a manner that ref lects what is in- volved in the litigation, and its jurisprudential importance, and the inherent complexity of the proceeding," wrote Osborne in his report. Previously, discovery focused on any documents that were "relating to" a matter at issue whereas today production must be "relevant to" it. The explo- sion of electronic data made this liberal standard for discovery expensive and time-consuming for all parties involved and often impeded the ability of litigants to actually reach a trial. "What you're doing is you're tempering the traditional ob- ligation to do very deep and broad discovery on the mat- ter to allow the parties to get to the truth," says Dan Micha- luk, chairman of Hicks Morley Hamilton Stewart Storie LLP's information management and privacy practice group. Kate Manning, a lawyer at Susan Wortzman PC, says the new rules around proportional- ity have been a boon for access to justice. "You're going to impede ac- cess to justice for certain parties if they can't afford to do a full- blown e-discovery exercise," she says. "If a small business is asked to go back for 10 years and pull up all their records and hire a forensics specialist to come in, it can get very expensive and they're not going to be able to af- ford to proceed with litigation." In Warman v. National Post Co., a 2010 ruling that was one of the first to focus on propor- tionality, Superior Court Mas- ter Donald Short outlined an eight-part test for determining whether a production request is proportional. These include "the speci- ficity of the discovery re- quests; the likelihood of dis- covering critical information; the availability of such infor- mation from other sources; the purposes for which the responding party maintains the requested data; the rela- tive benefit to the parties of obtaining the information; the total cost associated with production; the relative abil- ity of each party to control costs and its incentive to do so; and the resources avail- able to each party." In a ruling from earlier this year, Siemens Canada Ltd. v. Sapient Canada Inc., Short emphasized the need for parties to have a discovery plan in place in order to come to a proportional solution. The case had begun prior to the new rules around propor- tionality, but the parties didn't put together a discovery plan after the update to them. "As a consequence, both sides proceeded towards discovery, largely in accord with what had been 'the traditional way' for complex commercial litigation in Ontario," wrote Short. Short spoke about the case at the Ontario Bar Association's E- discovery Institute this fall. He noted the case involved "two very knowledgeable coun- sel who thought that they knew what they were doing and thought that they didn't need a discovery plan." Because Sapient Canada had a corporate policy to delete most e-mails after 30 days, it would have been very expensive for the company to produce the mes- sages for discovery. Siemens Canada, however, had longer retention periods for its e-mails. "Obviously, data that cannot be recovered, cannot be pro- duced," wrote Short in his deci- sion. "However it seems to me that if there is a possibility of obtain- ing relevant information from the electronic archives of parties who may well be properly iden- tified as 'custodians,' then the discovery plan ought to direct at least an attempt to obtain in- formation with respect to those parties." He continued: "In this case, the policy lead [sic] me to the conclusion that there needs to be some additional form of e- mail recovery attempted in or- der to balance the more lengthy retention policy of the party op- posite. This really is a propor- tionate approach." Short eventually awarded no costs to either side. "It is my belief that the parties are the authors of their own mis- fortune in this case," he wrote. "Their failure to accept the philosophy of the new Rules and to comply with the mandatory requirement for the establish- ment of a Discovery Plan, prior to the obviously necessary elec- tronic document review in this case has resulted in wasted time and expense on both sides." Short told the OBA event: "If production . . . appears to be relevant but not essential, who should pay the cost? And that's the real question with all of this. What I have done is if it's on the border line, is say if you really want it, you're going to pay for it or you're at least going to have this as an element that the trial judge is going to decide whether you need to have it." Manning says Siemens demonstrates the need for parties to keep proportion- ality in mind from the very beginning of a case. "Proportionality has to be the norm and not the excep- tion," she says. "It's the start- ing point; it's not something that you default back to later." Having a unique discovery plan is essential to coming up with proportionate solutions, according to Michaluk. "It's no longer one process fits all," he says. "You're supposed to tailor the process for what would make the most sense in the circum- stances." Michaluk says a discovery plan should begin with a state- ment of the issues in the case that should then drive the rest of the plan, including who are the custodians of information and even specific search parameters. "It's supposed to be a very practical agreement that sets a path for getting along and mov- ing forward," he says. According to Michaluk, determining what's proportion- al rests on good co-operation between opposing parties and their respective counsel. "Our bar is pretty close. We have decent relationships with union counsel because we're up against them all the time," says Michaluk, a management-side lawyer. "There's kind of a mutual, unstated understanding about proportionality." Susan Wortzman, founder of Wortzmans, said proportional- ity arguments carry much less weight in public sector litigation because the government will of- ten be arguing that the outcome of the litigation is in the public interest. "In a commercial litigation, you can say this is dispropor- tionate and you're really talking about money," she said. "But when you're dealing with public interest, it is a dif- ferent animal and you have to take that into consideration as to how you're going to manage that in terms of volume." Short emphasized that re- gardless of the vast quantities of data that are often up for debate during the discovery process, most cases will still rest on a small number of exhibits. "We do all of this other stuff to generate a lot of time, a lot of expense, and when you get to trial, how many of them are rel- evant?" he asked. "If it's not relevant, is it pro- portionate to spend a lot of time and money getting it?" LT FOCUS Untitled-4 1 2014-11-26 9:28 AM S Having a unique discovery plan is essential to coming up with proportionate solutions, says Dan Michaluk.

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