All Discovery Plans Are Not Equal
Ontario courts made progress in 2010 in terms of defining what a discovery plan should include and what happens when opposing parties fail to reach agreement on a discovery plan.
In this second of a two-part series, we review several examples of court-endorsed discovery plans and contrast them to the amended Ontario Rules of Civil Procedure Rule 29.1.03 “Contents” and the Ontario E-Discovery Implementation Committee’s Model and Sample Documents.
Discovery Plan Formats - Court Endorsed Examples
Although new Rule 29.1.03 outlines the contents required in a discovery plan, no forms are provided. While many discovery plans have undoubtedly been submitted and approved to date, at least two exemplars have been drawn to our attention by the courts.
The August 25th, 2010 court imposed discovery plan in Ravenda v. 1372708 Ontario Inc. (“Ravenda”), 2010 ONSC 4559 (CANLII), which was discussed previously in Part 1 of this series, is relatively simple and is comprised of the following elements [in accordance with Rule 29.1.03(3)]:
A. The Intended Scope of Documentary Discovery
B. Dates for service of each party’s Affidavit of Documents
C. Information respecting the timing, costs and manner of the production of documents by the parties
D. The names of persons intended to be produced for oral discovery and information respecting the timing and length of the examinations 1
At the opposite end of the complexity spectrum, a discovery plan agreed upon by the parties in Enbridge Pipelines Inc. v. BP Canada Energy Company (“Enbridge”), 2010 ONSC 3796 (CANLII), was profiled in the unique “Endorsement re Discovery Agreement”, released on July 6th, 2010 by Justice Colin Campbell, a long time advocate of the development of standards regarding the treatment of electronic documents in Ontario courts. Justice Campbell takes this opportunity to commend counsel for the “responsible and cooperative manner in which they have achieved agreement on discovery issues that otherwise might have taken not only a great deal more time and cost to achieve but as well numbers of court attendances”. 2 His Honour also states that “in my view the Discovery Plan reached is precisely what was intended in Rule 29.01 with reference to the “Sedona Canada Principles” in the discovery of electronic documentation in a complex case involving several hundred thousands of documents”. 3
Lest we deem the Enbridge example a suitable template for meeting the Discovery Plan requirement in all future cases, Justice Campbell adds a note of uncertainty with his observation that “Not every action will in my view require the detailed type of plan as set out in this Agreement. Many different types of action need only an informal agreement between counsel.” 4
Contrasting the Ontario E-Discovery Implementation Committee's Model Documents with the Enbridge v. BP Canada Discovery Plan
It may be instructive to compare the “Discovery Agreement” for Enbridge with the model and sample documents developed by the Ontario E-Discovery Implementation Committee to provide some guidance with regards to meeting the new Discovery Plan requirements. Model Document #9A: Discovery Plan (Long Form)5 was presumably envisioned for use in complex cases with significant eDiscovery components, while Model Document #9B: Discovery Plan (Short Form) 6 was identified as being “potentially helpful…in cases brought under Rule 76 or in matters involving relatively straightforward or narrow legal and documentary production issues”. 7 Sample Document #1: Letter Confirming Discovery Agreement 8 was provided “as an illustrative example from a hypothetical case of how counsel might seek to confirm by letter the results of a discovery planning (or “meet and confer”) session between the parties with respect to documentary and oral discovery... (in) a relatively uncomplicated matter, in which e-discovery is nonetheless important”. 9
Given that Justice Campbell characterized Enbridge as “a complex action with voluminous documentation” 10 this matter would seem to have been an ideal candidate for the “Long Form” model template. However, the Enbridge Discovery Plan is actually based on the EIC’s earlier (2007) Model Document #1: Meet and Confer Agreement11, which is consistent with the fact that the five meet and confer sessions held by the Enbridge parties occurred in April, June and July, 2009, long before the amendments to the Ontario Rules of Civil Procedure (“Rules”) came into force on January 1, 2010. Consequently the Enbridge Discovery Agreement, while extensive and detailed, including the “Appendix C – Technical Production Agreement” 12 (summarized in the attached Appendix 1), bears little resemblance to Model Documents #9A and #9B.
Of note is the absence of detail in the Enbridge Discovery Plan regarding a number of major elements of the “Long Form” template: (2) Legal issues for determination at trial; (3) Type & location of potentially relevant records; (4) Agreed Preservation and Retrieval Plan; (5) Agreed Search Parameters; (9) Procedures to confirm record authenticity/integrity; (11) Scope of written discovery; and (12) Agreement Regarding Exchange of “Contextual Facts” in Advance of Oral Discovery, although the document does refer to the existence of previous agreements and the anticipation of future agreements regarding some of these elements. In fact, while the following elements may well have been agreed on in the multitude of previous meet and confer sessions listed in the Plan, the submitted discovery plan fails to outline any specifics regarding three of the four13 required “Contents” listed in Rule 29.1.03(3): “(a) the intended scope of documentary discovery”, “(b) dates for the service of each party’s affidavit of documents”, and “(d) the names of persons intended to be produced for oral examination for discovery…and information respecting the timing and length of examinations.” Once again, these omissions likely stem from the 2009 timing of the Enbridge meet and confer sessions, held well before the amendments to the Rules.
Conversely, in the court imposed Ravenda Discovery Plan, each of the four required “Contents” listed in Rule 29.1.03(3) was specifically addressed. It should be noted, however, that this court imposed plan was introduced in August 2010, very late in the timeline of this case and well after the effective date of the amendments to the Rules.
It remains to be seen, then, what impact Justice Campbell’s 2010 endorsement of the Enbridge Discovery Agreement will have on future Discovery Plans, and whether or not Enbridge will take any form of precedence over the EIC’s later Model Documents #9A and #9B. We can only conclude that at this point in time, when the implementation of Rule 29.1 is still “somewhat novel” 14, as described by Master Donald E. Short in TELUS Communications v. Sharp, Reasons For Decision, the courts will show some flexibility in terms of approving diverse Discovery Plan formats.
So where does this leave us? Beyond the need for both parties to reach consensus on a written discovery plan or run the risk of a court imposed plan, it seems we do not yet have a clear picture of the specific format(s) of a Rule 29.1 Discovery Plan for a complex case that will be deemed acceptable by the Ontario courts.
It may be helpful to revisit the foundations of the 2010 amendments to the Civil Rules regarding the Discovery Plan. In the November 2007 Summary of Findings & Recommendations to the Civil Justice Reform Project, the Honourable Coulter A. Osborne, Q.C. recommended greater reliance on The Sedona Canada Principles, given that “they reflect the value of proportionality, flexibility and cooperation among parties in the context of e-discovery” 15 and subsequently recommended that a written discovery plan address “the most expeditious and cost-effective means to complete the discovery process proportionate to the needs of the case.” 16
Perhaps, then, evidence of cooperation, proportionality, flexibility, timeliness and cost-effectiveness are the true measures of whether or not a Discovery Plan is adequate under the 2010 amendments to the Rules. Only time will tell.
What is clear, however, is that Discovery Plan formats will range from informal agreements between counsel (presumably outlined in a letter), as recommended by Justice Campbell, to extremely detailed technical agreements, similar to that of Enbridge, depending on the complexity and importance of the case, the amounts at stake and the volume of electronic data to be reviewed. In major cases with large volumes of electronic data, negotiated Discovery Plan parameters will have a significant impact on the overall cost of eDiscovery.
H&A eDiscovery’s experts can provide your legal team with early, detailed analysis of the anticipated volume, types and locations of electronic data in a case, and offer informed estimates of the associated costs of collection, processing and review. This information will enable your team to bring objective and proportional scope recommendations to Discovery Plan negotiations with opposing counsel. For more information on how H&A can help, visit our website at www.haediscovery.com or call us at 416-233-5577 or 1-866-233-5577.
1. Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (CANLII), August 25, 2010, SCHEDULE A, DISCOVERY PLAN (Court Ordered), Court File No. 5234/06
2. Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CANLII), July 6, 2010, ENDORSEMENT re DISCOVERY AGREEMENT at para 4
3. IBID at para 5
4. IBID at para 3
5. Ontario E-Discovery Implementation Committee, Model Document #9A: Discovery Plan (Long Form), Public Comment Draft – Version 1.1, , © Copyright 2010 http://www.oba.org/en/publicaffairs_en/e-discovery/model_precedents.aspx
6. Ontario E-Discovery Implementation Committee, Model Document #9B: Discovery Plan (Short Form), Public Comment Draft – Version 1.1, © Copyright 2010 http://www.oba.org/en/publicaffairs_en/e-discovery/model_precedents.aspx
7. IBID at para 3
8. Ontario E-Discovery Implementation Committee, Sample Document : Letter Confirming Discovery Agreement (2010) http://www.oba.org/en/publicaffairs_en/e-discovery/model_precedents.aspx
9. IBID at para 1
10. Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CANLII), ENDORSEMENT re DISCOVERY AGREEMENT at para 1
11. Ontario E-Discovery Implementation Committee, Model Document #1: Meet and Confer Agreement, Public Comment Draft, September 21, 2007. http://www.oba.org/en/publicaffairs_en/e-discovery/model_precedents.aspx
12. Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CANLII), ENDORSEMENT re DISCOVERY AGREEMENT, Appendix “C” – Technical Production Agreement
13. Reference to “four” required Contents in Rule 29.1.03(3) excludes the fifth requirement, “(e) any other information…”, since it is non-specific.
14. TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CANLII), May 17, 2010, REASONS FOR DECISION at para 19
15. Civil Justice Reform Project. Summary of Findings & Recommendations. Honourable Coulter A. Osborne, Q.C. November 2007 http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/ at chapter 8. Discovery, page 63
16. IBID at page 66
Summary of Enbridge v. BP Canada’s
“APPENDIX C – TECHNICAL PRODUCTION AGREEMENT”
Agreement that de-duplication software will be utilized by both parties to identify and suppress exact duplicates, save email attachments.
2. Near De-duplication
Agreement that near de-duplication software will be utilized to manually review both the paper and electronic records to ensure that only exact duplicates are suppressed.
Redactions must be produced in black and the basis of their removal identified.
Agreement that all privileged documents will be identified in a Schedule (“B”) as being privileged including the specific basis for the claim for privilege.
5. Rolling/Priority Production
Agreement to produce records on a rolling basis, if more efficient, and to initially identify and produce records of key custodians and other priority records.
6. Production Format
Agreement to produce their records in electronic TIFF format, though spreadsheets will be produced in their native format, with incremental costs borne by the requesting party.
Agreement that, wherever possible, objective coding for the records will be captured electronically and include a list of coding fields.
8. Unitization of Paper Records
Agreement that logical unitization shall be utilized for paper records.
Agreement to exchange OCR text files for all productions (without redacted portions).
10. Non-Waiver / Clawback
Agreement that in the event any privileged or irrelevant confidential documents are inadvertently included in the productions, neither the listing of them nor the production of the actual records will constitute a waiver of privilege or confidentiality; such documents will be immediately returned and all copies purged.