Legal Blog

Data Dump

The Gowing/Walsh litigants in the previous case were also involved in another action dealing with another construction project. This matter had progressed beyond the pleadings stage when issues arose about the productions of documents, resulting in a 2023 motion.

Discovery

In the documentary discovery phase of litigation, parties must generally provide each other with all relevant, non-privileged documents. On a large-scale construction project, productions can involve hundreds of thousands of documents, particularly when emails informing the progression of the project are included. Before documentary discovery occurs, parties are required to agree on a discovery plan, which sets out the scope of production, including how electronic evidence is to be searched to eliminate production of irrelevant documents.

Issues often arise about under-production of documents. This case involved exactly the opposite problem – the dreaded document dump. The defendant general contractor did not properly restrict its production to the relevant documents and included a huge number of irrelevant emails. The general did not dispute that it had included in its productions approximately 270,000 irrelevant documents, accounting for 25% of the general’s productions.

Review Cost

The irrelevant productions resulted in a significant cost to the plaintiff subcontractor. The sub was required to retain an e-discovery specialist lawyer, who spent upwards of 40 hours uncovering this problem at a cost of approximately $20,000. In addition, several litigation lawyers were also involved in the file and spent time reviewing irrelevant material.

The sub sought an order requiring the general to reproduce its documents without the irrelevant emails and pay the sub’s costs incurred in the review of irrelevant productions.

The general relied on the fact that the parties had entered into a discovery plan, which did not include sufficient detail. The associate judge (different from the associate judge in the security for costs case) criticized the discovery plan, but found that this did not detract from the general’s duty to produce only relevant documents.

Although the associate judge conceded that any large-scale production would always include some small amount of irrelevant material, the level of the general’s improper production was over-the-top. He found that the general had clearly breached its production obligations by not applying proper search protocols to limit the number of irrelevant emails.

Upshot

The associate judge ordered the general to produce its documents again, but, this time, to eliminate all irrelevant documents, already identified or not. In addition, the associate judge required that the general disclose the search terms that it used in its compilation of relevant documents and provide a list of its employees whose documents were searched.

Image courtesy of AbsolutVision.

Written by Tim Morgan, a litigator with a focus on commercial matters. He has appeared before all levels of Ontario Courts and has represented businesses of all sizes, from Canada’s largest corporations to privately held, family-run businesses.