Case Report – Motion for discovery sanctions dismissed, conduct not proven to be deliberate

On January 29th the New Brunswick Court of Queen’s Bench dismissed a contempt motion and a request for sanctions in a protracted discovery dispute.

Based on an earlier motion, decided on July 16, 2006, the defendants were ordered to provide a further and better affidavit of documents and to provide direct access to a computer system (including active and archived data). They did not provide such access and were sluggish in disclosing documents. The plaintiffs then brought a second motion in June 2007, asking the Court to infer malfeasance from the sluggishness and the fact that the defendants had continued to disclose documents after certifying earlier that they did not exist.

The plaintiffs’ motion was initially heard in June but concluded in late December. While the Court remained seized of the motion, in late November and December, the defendants provided two further and better affidavits and provided access to the computer system as previously ordered (without a cost-shifting order as they had requested). The Court held that the plaintiffs had received meaningful production by December 2007 and rejected the plaintiffs’ sanction request.

The Court stressed the high standard for the requested order – framed as a contempt order and striking a defence which the court said had merit. While it held that the defendants were not diligent in preventing electronic information from being downgraded (i.e. altered to be stored in a less accessible form) and even stated that it wondered whether this downgrading was purposeful, it held that this conduct did not merit a contempt order. It also did not draw an inference of malfeasance from the defendant’s sluggishness, recognizing that the discovery task wasn’t easy:

However, as we know, the parties were dealing, amongst other things, with 498 bankers’ boxes of documents and 427 backup tapes that contained information from Spielo’s previous computer system. Certain discrepancies in disclosure, or the misplacement or inadvertent overlooking of a document, is understandable given the enormous volume of material involved in this matter. This is not necessarily indicative of any culpable conduct or malfeasance on the part of the defendants.

While dismissing the motion, the Court did note that cross-examination at trial may shed more light on the issue of deliberate non-disclosure.

Doucet v. Spielo Manufacturing Inc., [2008] N.B.J. No. 27 (QL) (N.B. Q.B.). [CanLII award not yet available.]

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