In 2010 the Ontario Rules were amended to help parties cope more effectively with the demands of electronic discovery. The main aims of the reform were to increase efficiency and reduce cost. One of the key elements of the new Rules was the introduction of a mandatory Discovery Plan. The Plan was conceived as a method of encouraging parties to collaborate on e-discovery issues. The Plan has to be in writing, so there is an element of formality about it; the parties must consider the Sedona Canada Principles in drafting their plan; and if the parties fail to agree on a plan, the court can impose cost consequences or refuse to grant relief on a discovery motion.
There is a deadline for the Plan – it must be agreed within 60 days of the close of pleadings, but the parties can extend the deadline by agreement. Supposedly, parties cannot obtain evidence either through documentary or oral discovery until the Plan is finalized. Some have argued that requiring a Discovery Plan in every single case is overkill and that the requirement should be either modified or eliminated entirely. I don’t agree, partly because I am not convinced that there are many cases today with documentary evidence that is not electronic, and partly because if circumstances dictate, the plan can be simple one. So here are my recommendations, and I’m very open to comments:
- We should not eliminate the rule requiring a Discovery Plan just because lawyers are not following it.
- E-discovery experts support the need for a Discovery Plan in every matter, even matters with straightforward legal issues. Plans can and should be tailored to the case.
- The outline of a plan should become a form, and the Affidavit of Documents should be amended in consequence.
- The plan should be mandatory; it must contain certain elements including the agreed-upon formats of exchange, scope and method of preservation and production etc.
- The plan should also have to filed with the court. Right now, the plan is mandatory but the court never sees it unless there’s a dispute. It is important enough to be maintained in the case file (but not as a public record).
The problem with the rule is not the mandatory plan – it’s the sanction.
- Two reasons: first, how do you know which party to sanction? If the plan is a joint plan, each will accuse the other of failing to agree.
- Second, the penalty for failing to agree on a plan is that further steps cannot be taken. Unfortunately this is precisely what some parties want – delay. So they can obstruct the litigation process itself by either failing to discuss a plan or being deliberately obstructive.
- A Discovery Plan should have to be filed with the court 60 days after the close of pleadings.
- If the parties cannot agree on a plan by the deadline, then each party must file its own proposed plan in the form provided.
- The penalty for failing to agree is that a plan is imposed – not (as in Nova Scotia, a “default plan”) – but a real plan. The party whose plan is not thought through, not reasonable or not proportional may end up having to comply with the other party’s plan in its entirety. This is a strong incentive to agree.
- E-discovery lawyers can be called upon by the court as special masters to arbitrate competing plans and determine which one “wins”, or whether a compromise is best. Arbitration is more efficient than mediation in a situation where counsel are unco-operative.
- There is a of course a cost to this process – but the cost of mandatory arbitration will be borne by the parties, and is only necessary if the parties don’t agree to a plan. Ultimately, the cost of arbitration would be much less than the cost of continued unnecessary hostilities.