Ontario’s New Rules of Civil Procedure Address Electronic Discovery

As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.”  In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:

• Discovery steps should be proportionate.  Parties should consider the nature of litigation; relevance of electronic evidence; importance to adjudication; and the cost and delay that may be imposed to deal with electronic documents.
• Parties should meet and confer as soon as possible regarding identification, preservation, collection and production of electronic documents.
• Parties should be prepared to disclose all relevant electronic documents.
• Parties should agree as early as possible on the format in which electronic information will be produced.

As evidenced in the Sedona Principles highlighted by the Ministry of the Attorney General, the newly effective rules also establish the importance of proportionality in discovery and therefore identify several mandatory considerations for the court when “making a determination as to whether a party or other person must answer a question or produce a document.”  Pursuant to Rule 29.2.03, those considerations are whether:

(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source. O. Reg. 438/08, s.25.

The rule also requires consideration of “the overall volume of documents”:  “[I]n determining whether to order a party or other person to produce one or more documents, the court shall consider whether such an order would result in an excessive volume of documents required to be produced by the party or other person.  O. Reg. 438/08, s. 25.”

The newly effective rules contain many other important revisions, including changes to the scope of discovery, the duration of oral exams, and the expert evidence rules, among others.

To read the Ministry of the Attorney General’s discussion of all changes to the Ontario Rules of Civil Procedure, click here.

To be taken directly to the Ontario Rules of Civil Procedure, click here.

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