In a June 16th order, Master MacLeod had the opportunity to consider whether a party should be compelled to answer, in the ordinary course of oral discovery, questions about its efforts to preserve evidence. He said:
Q. 823 was originally a question about producing pharmacy records. Apparently when the request was made, the pharmacy only had computer records going back to 2001. There was a follow up question as to when the request was made. Q. 945 asked for a microbiological report which is not available. The question is asked as to whether the document did exist and if it was destroyed, when that occurred and when did the plaintiffs first take steps to preserve the evidence? These follow up questions, if they are relevant, are relevant only to an argument that an adverse inference at trial should be drawn if it appears the plaintiffs did not take adequate steps to preserve available evidence once litigation was contemplated or when it first became apparent that this evidence might be relevant. There are certainly circumstances in which compliance with litigation holds or compliance with undertakings may make it relevant if a party has been so slow in complying with its obligations as to give rise to a spoliation inference or sanctions for what in the United States is sometimes described as “purposeful sluggishness”. There is no evidence before me to suggest this is the case here and I decline to exercise my discretion by ordering this question to be answered.
Andersen v. St. Jude Medical Inc., [2008] O.J. 2452 (S.C.J.) (QL).
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