Uncooperative Litigants Beware – Discovery Plans Are Not Optional

Litigants who are still operating under the assumption that meet and confer sessions/discovery plans are merely optional should take note. Recent case law under the new Ontario Rule 29.1.03 confirms that courts are willing and able to mandate discovery plans.

In TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CanLII), Master Donald E. Short considered the scope of Rule 29.1.03, requiring that parties to an action agree to a discovery plan. The defendant in the case had failed to serve an Affidavit of Documents or to communicate with the plaintiff regarding his availability for discoveries.

Noting that the language of the applicable sub-sections is mandatory (”the parties to the action shall agree to a discovery plan”), Master Short turned to the issue of what occurs when the parties fail to make the directed agreement. He noted that while the new Rules address some of the consequences of a failure to agree on a Discovery Plan, including the ability of the court to refuse to grant any relief or costs, they do not provide specific guidance with respect to the imposition of a plan.

Expressly citing sub-Rules 1.04(1) and (2) which address the General Principle and Proportionality provisions of the Rules, and noting that where specific matters are not provided for in the rules, determination by analogy shall be utilized, Master Short concluded he had the authority to impose a Discovery Plan upon an unwilling litigant.

It is gratifying to see the courts embracing the principles of cooperation and proportionality in the discovery context. Stay tuned as the Ontario courts consider and rule upon other cases under the 2010 amendments to the Ontario Rules of Civil Procedure.

Our latest discovery

Wortzman Nickle is pleased to announce Rachael Chadwick is joining us as a Senior E-Discovery Analyst and Project Manager.  Rachael comes to us after years of experience as a Law Clerk whose practice focused on e-discovery. 

Rachael arrived just in time.  January 2010 has started off with a bang!  2010 is the year for lawyers, in-house counsel and organizations to embrace e-discovery.  Undoubtedly the new Rules of Civil Procedure that came into force in Ontario effective January 01, 2010 have had some impact on this.  We have been busy attending Meet and Confer sessions, meeting with organizations that are anxious to have Records Management Policies in place in the calendar year and meeting with other organizations who want to ensure that they have litigation readiness plans in place.  Top that off with several on going e-discovery review projects and we are off to an exciting start this year.  The addition of Rachael to our team adds to our office strength and the breadth of our e-discovery experience. 

Wortzman Nickle are off to LegalTech this week..stay tuned for updates!