Law Times

Law times • OctOber 3, 2011 FOCUS Page 11 Discovery plan rule slow to take effect Lawyer finds new requirement failing to achieve stated goals BY JULIUS MELNITZER For Law Times ginning of 2010, it included the concept of a discovery plan that represented the parties' agree- ment on the scope of document production. "The rule was intended to W ensure a more open, complete, efficient, and fair discovery process," says George Leib- brandt of Mississauga's Keyser Mason Ball LLP. "In particu- lar, filing a discovery plan was supposed to reduce the num- ber of disputes and motions about production." But Leibbrandt says the rule is frequently having the opposite effect to what was intended. "The success of the rule depends on counsel agreeing in advance of discov- ery on which documents are and are not relevant. But in many kinds of litigation, such as employment law, lawyers can't make that decision early on because the documents are in the possession of the client who often does not appreci- ate what is relevant and may not turn everything over to the lawyer until its relevance becomes apparent at a later stage." The adversarial nature of the legal process also means lawyers are often reluctant to agree to the scope of produc- tion early on for fear of defin- ing their case too narrowly. "In my experience with the rule, which is primarily in employment cases, it has been more problematic than effec- tive," Leibbrandt says. "It does work from time to time, but mostly the parties get bogged down in trying to agree on what will be relevant on a go- forward basis." However, there are solu- tions to the problem. "When it becomes obvi- ous that agreement isn't pos- sible, the parties can reserve the right to request additional documents whose relevance becomes apparent over time," Leibbrandt says. Another option, Leib- brandt suggests, is to limit the application of the rule to the types of cases where it will be useful. "Most employment cases, for example, are not all that complex and the number of documents in play are fre- quently not as great as in other types of cases so that the idea of a discovery plan doesn't add much value to the process," he says. Finally, Leibbrandt says that building in more sub- stantial penalties, such as costs sanctions where parties have taken an unreasonable position on a discovery plan, might also expedite matters. Untitled-5 1 hen Ontario amend- ed its Rules of Civil Procedure at the be- According to Ira Nishisato of Bor- den Ladner Gervais LLP, the rule hasn't brought about a significant change in practice. "The real issue is whether the courts have broader powers than they had in the past to deal with motions regard- ing discovery," he says. "There's been a shortage of case law where the courts have considered the requirement for a discovery plan and the consequences of a failure to agree on one." The Rules give courts discretion to re- fuse relief or award costs if no discovery plan exists. "But there's no point in sending the parties back and telling them to agree," Nishisato says. "And although there have been one or two cases where the courts have imposed costs sanctions, it's rarely that the blame can be laid entirely on one party or the other." As Joel Richler of Blake Cassels & Graydon LLP sees it, adding an additional step to the discovery process was invari- ably going to add time and money to the proceedings. "The important question is whether the parties are getting a good bang for their additional bucks," he says. "If you get counsel who disagree on everything, re- quiring them to agree is a waste of time." What has happened, Richler says, is that lawyers are following the form of the rule rather than its substance. "The upshot is a bare discovery plan that says here's where and when we'll have discovery and here is when we'll finish," he explains. "The other extreme is discovery plan meetings that go on for weeks and weeks, as in large class actions where the meetings are so important and time-con- suming that the clients attend as well." On the other hand, the meetings can become contentious and wayward with the issues relating to the scope of the plan rather than the scope of discovery. "It's hard to make a general statement as to the effectiveness of requiring a discovery plan because every case is different, but I can say that the rule has had salutary ben- efits in many cases because it can certainly winnow disputes," says Richler. LT 'In my experience with the rule, which is primarily in employment cases, it has been more problematic than effective,' says George Leibbrandt. www.lawtimesnews.com 5/10/11 4:05:30 PM

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