On January 27th Marrocco J. of the Ontario Superior Court of Justice dismissed a motion for a further and better affidavit because the moving party had previously taken custody of the records that it wanted the respondent to produce.
The moving party had executed an Anton Piller order that apparently gave it unrestricted access to a number of hard drives, and it used the drives to demonstrate deficiencies in the respondent’s production. In dismissing the motion, Marrocco J. said:
Rule 30.03(2) of the Rules of Civil Procedure provides that the affidavit of documents shall list and describe all documents relevant to any matter in issue in the action that are in a party’s “possession control or power…”. In this case, the respondent’s hard drives were seized under an Anton Piller order. They were imaged and the imaged hard drives were made available to the plaintiff. The plaintiff can have access to the imaged hard drives at any time. Therefore, it seems to me that the imaged hard drives are within the power, if not also the possession and control of the plaintiff. Therefore, pursuant to Rule 30.03(2), the plaintiff is obliged to review the documents on the imaged hard drives when preparing its affidavit of documents.
Marrocco J. did note that the respondent had not made any claim of privilege in records contained on the hard drives.
Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII).