Canada: Records Management @ Gowlings: November 23, 2011 - Volume 2, Number 7

CASE LAW

Barker v. Barker, [2007] O.J. No. 1555, 157 A.C.W.S. (3d) 274 (S.C.J.)

Issue: Production costs in association with the discovery process; under what circumstances should the plaintiff share in the costs

The plaintiffs in this action brought a claim against the defendants as a result of the treatment they received while in a maximum security division of a mental health facility. The plaintiffs alleged that the treatment they received aggravated their pre-existing medical conditions and had long lasting effects. In order to satisfy their discovery obligations, the defendants proposed to computerize and code the extremely large volumes of patient records at a cost which could range from $160,000 to $383,000. The defendants brought a motion to require the plaintiffs to pay for one-third of these costs. The defendants argued that because the plaintiffs will benefit from the process, they should also share in the costs of achieving it.

The court reviewed S. 131(1) of the Courts of Justice Act, which provides the court may determine by whom and to what extent "the costs of and incidental to ... a step in a proceeding" are to be paid. The court also considered the Supreme Court of Canada's decision in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371, which held, as a general rule, costs should be awarded only at the end of litigation and that interim awards should be made only if: (a) the party seeking the costs is impecunious and would be unable to pursue the litigation if the order was not made; (b) that party has, prima facie, a case of sufficient merit; and (c) there are present special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where "this extraordinary exercise of its powers is appropriate" (paras. 36 and 64).

The court ultimately distinguished this situation from that of Okanagan in that there was very substantial continuing benefits to the plaintiffs and the court that were likely to be obtained from the electronic conversion by the defendants. The proposed benefits and their magnitude were held to be enough to justify the plaintiffs payment of one-third of the conversion costs on a provisional basis. However, these costs were not awarded in any event of the cause. Rather, they were to be paid as incurred, but subject to the review of the trial judge.

United States v. Universal Health Services, Inc. 2011 WL 3426046 W.D.Va.

This was a motion by the Defendant to compel the Commonwealth to produce documents. The action involved allegations that Universal had discriminated against a number of employees on the basis of race and gender. The employees made allegations that Universal had submitted false claims under the Virginia Medicaid Program. These allegations were submitted to the Department of Behavioural Health and Developmental Services (DBHDS). The Commonwealth argued that to produce the documents would be unduly burdensome as to do so an exchange server no longer in use would need to be recreated to enable the reading of all backed-up files. The Court stated that for a party to avoid the production of responsive electronically stored information based on undue burden it must show that the information is not reasonably accessible because of undue burden or cost. In this case, the facts showed that the Commonwealth knew as early as April 4, 2008 that it intended to intervene in the action and that the claims would involved the DBHDS. However, the Commonwealth failed to put a litigation hold in place until April 1, 2010. The Court held that a portion of the records being sought were less accessible due to the negligent failure of the Commonwealth to take steps to adequately preserve relevant information. Further, there was evidence that commercial vendors could read and produce the information in question in a less expensive method than that proposed by the Commonwealth. The Court ordered that the Commonwealth should not be excused from production of the sought after information.

Conseil québécois sur le tabac et la santé v. JTI-MacDonald Corp., [2011] Q.J. No.4390, 2011 QCCS 1965

This case involved several companies complaints regarding document production of the Attorney General of Canada ("AG"). The problems were divided into nine different categories, with two making up the substantial analysis of this judgment.

The nine categories of problems related to the documentary production were: 1) Omission to produce obviously relevant documents; 2) Missing attachments/missing pages; 3) Undisclosed content of various information-technology media; 4) Documents of inadequate technical quality; 5) The use of document removal place holders; 6) Missing survey data; 7) Documents that might have been disposed of or destroyed; 8) Excessive errors in the coding of documents; and 9) Missing documents from governmental services. As noted, the last two categories made up the substantive analysis of the judgment. The parties were able to come to an agreement on the other seven categories.

Regarding the excessive errors in the coding of documents, the Companies' complained of numerous errors in the produced records regarding missing information, such as authors, dates and other important information. The court accepted the AG's evidence that coding errors on up to 10% of documents is acceptable in this industry. Further, no legal proof existed to demonstrate that the error rate in the AG's documents was in excess of 10%. The Court ordered the AG to produce the relevant documents through affidavits for each of the 16 production rounds in order to demonstrate that the error rate was in fact not in excess of 10%.

Regarding the missing documents from governmental services, the Companies alleged the AG did not search certain document repositories within the government to determine if they held relevant documents. The Court found that the AG wilfully and unilaterally excluded any document or publication held in various libraries under the control of the Government of Canada, and advised no one of its decision. However, the Court did acknowledge that every document in the possession of the Government of Canada need not be provided; only the relevant documents to these files must be produced.

The Court ultimately found that the AG was obligated to uphold its obligations under the previously agreed upon timetable for production between the parties in relation to all documents which were contemplated by the parties as relevant and accessible to the AG. Particularly relevant was the fact that the AG had previously taken an unwavering view towards documentary production of the Companies. It was also noteworthy that the agreement for production was made when the AG had full knowledge of the circumstances. The court rejected the AG's arguments that the volume of documents was too great, making the undertaking to produce disproportional and in violation of the general rules applicable to document discovery and held there was no justification for changing the AG's position. The AG was therefore held to the same standard regarding document production that it agreed to and vigorously imposed upon the Companies' when it demanded similar production.

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