Canadian E-Discovery: Proportionality Requires Planning to Implement
October 20, 2010 - By Virginia P. HenschelExperience stepped up to the dais in Toronto this week, as Applied Discovery presented a panel exposition on the topic of proportionality and the practical application of the concept to "real world" discovery. We have previously blogged on this topic under the caption of Canada's Golden Rule. Joining us on the dais were Master Calum MacLeod, Ontario Superior Court of Justice, Kelly Friedman, Chair, Sedona Canada & Partner, Ogilvy Renault, and Susan Nickle, Wortzman Nickle Professional Corporation. The session was moderated by our own Crystal O’Donnell, LL.B., LL.M.
Whereas the Ontario Rules of Civil Procedure mandate proportionality in discovery, it may be difficult to translate the concept to practical use in litigation. Our panel emphasized the importance of factoring in proportionality when drafting pleadings. The claims or defences pled will determine the scope of discovery; that scope may be broader than intended and lead to a greater discovery burden than the client may be willing to bear. As stated by Ms. Friedman, "in our optimism as counsel" we still want to find those "golden kernels" that will make or break the case, however we need to accept that the burden and expense of determining whether or not those kernels exist may be disproportionate to the value of the case. All the experts on the panel encouraged counsel present to assist their clients with discovery readiness planning in order to realistically assess burden and expense with in depth knowledge of the data and information infrastructure of the respective organization.
Included among the resources provided to counsel attending the presentation were an Applied Discovery White Paper: Proportionate Litigation and the OBA Proportionality Chart. These resources are of value in the practical application of proportionality in U.S. discovery matters as well. The concept of ensuring that the discovery requested is proportionate to the litigated matter is at the heart of the meet and confer obligation. It is also essential to the ethical representation of the client.
Whereas the Ontario Rules of Civil Procedure mandate proportionality in discovery, it may be difficult to translate the concept to practical use in litigation. Our panel emphasized the importance of factoring in proportionality when drafting pleadings. The claims or defences pled will determine the scope of discovery; that scope may be broader than intended and lead to a greater discovery burden than the client may be willing to bear. As stated by Ms. Friedman, "in our optimism as counsel" we still want to find those "golden kernels" that will make or break the case, however we need to accept that the burden and expense of determining whether or not those kernels exist may be disproportionate to the value of the case. All the experts on the panel encouraged counsel present to assist their clients with discovery readiness planning in order to realistically assess burden and expense with in depth knowledge of the data and information infrastructure of the respective organization.
Included among the resources provided to counsel attending the presentation were an Applied Discovery White Paper: Proportionate Litigation and the OBA Proportionality Chart. These resources are of value in the practical application of proportionality in U.S. discovery matters as well. The concept of ensuring that the discovery requested is proportionate to the litigated matter is at the heart of the meet and confer obligation. It is also essential to the ethical representation of the client.
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