Case Report – Master Short deals with deficient production allegations

On June 22nd, Master Short of the Ontario Superior Court of Justice addressed motions by two parties alleging each other provided deficient electronic production.

Motion A – Form of producing electronic documents deficient

Apotex sought a further and better affidavit of documents from Ercos, who initially produced approximately 1700 PDF files on a DVD. The PDF’s were named in a coded form, but the codes did not correspond with the codes Ercos had provided in its Schedule A index. Instead, it provided a table of concordance to allow the two different codes to be matched. One day after Aptoex served its notice of motion for a further and better affidavit of documents, Ercos produced a CT Summation load file to Apotex, but argued this was done as courtesy and that its original production was proper. Master short disagreed, stating:

While I am not being critical of counsel in this specific case, I do however take this opportunity to express my view in general that in cases of this nature the new rules put an onus on counsel, in situations such as this, to not use electronic production to gain tactical advantage. The requirement, in part arising from the “equality of arms” component of proportionality, does not mean that a party need provide a computer system to their opponents, but they do need to work together to facilitate the exchange of information and a practical production and exchange of the “bibliographic data” attached to their productions.

Master Short did not make an order in the circumstances.

Motion B – Paltry production justifies further and better affidavit

Ercos sought leave to cross-examine Apotex’s affiant and a further and better affidavit of documents from Apotex, who was claiming $100 million in damages as a result of delayed marked entry related to supply problems. Despite the nature of its claim, Apotex delivered a sworn and certified Affidavit of Documents that listed only 56 documents in Schedule A, all of which related to issues of liability and none that related to damages claimed. When pressed, it eventually produced an additional 14 documents related to damages claimed.

In ordering Apotex to provide a further and better affidavit of documents, Master Short did not expressly infer deficiency from the number of documents Aptoex had produced, but he did note the “totality of the circumstances” and the “entirety of the matters discussed.” He also found Aptoex’s own evidence and position flawed. Apotex adduced evidence on the motion that “counsel requested that Apotex forward all documents related to the issues of liability” and argued that a motion for production of documents related to damages claimed was premature in advance of oral discovery. Master Short said:

I regard this position as approaching a total disregard for the expectation of Rules. A party cannot unilaterally bifurcate its case, fail to disclose documents relating to remedy, and then, assert that the disclosure of the existence and content of any additional documents can wait until discovery.

Perhaps more significant to those engaged in e-discovery, Master Short suggested (subtly) that the “field filtering” document collection process followed by Apotex was not sufficient. He said counsel should have been “more proactive” and that he was not satisfied documents were “effectively requested from the client.”

Master Short did not order cross-examination on the deficient affidavit on the assumption that full production would be provided “in accordance with the directions and spirit of [his] reasons.”

Apotex Inc. v Richter Gedeon Vegyszeti Gyar RT, [2010] O.J. No. 2718 (S.C.J.).

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