Case Report – Master Short argues for proportionality in discovery

On August 16th, Master Short of the Ontario Superior Court of Justice issued a lengthy and impassioned argument for a new, scaled-down, approach to documentary production.

The matter was about production of a hard drive used by a defamation plaintiff and the basis for its production given the defendant’s justification defence. Here is Master Short’s summary of the dispute:

Mr. Warman asserts that someone adverse to his interests set about to make a hateful Internet posting and to take appropriate steps to make it appear that the posting had been generated from an Internet Protocol (“IP”) address belonging to Mr. Warman. Mr. Levant asserts that Mr. Warman, in fact, generated the subject posting and that if a full analysis of the hard drive of Mr. Warman’s computer is undertaken, it may well be that proof of Mr. Levant’s theory will be found.

Master Short ordered that the hard drive be examined by a neutral expert for specific relevant evidence that was very central to both the claim and the defence – i.e. information that would tend to show whether the plaintiff posted the hateful communication attributed to him by the defendant.

The outcome of the case is fact-specific, and not particularly surprising. Master Short, however, also said some fairly radical things about proportionality in discovery. Here are the key paragraphs (with emphasis from the original):

The time has come to recognize that the “broad and liberal” default rule of discovery, has outlived its useful life. It has increasingly led to unacceptable delay and abuse. Proportionality by virtue of the recent revisions has become the governing rule. To the extent that there remains any doubt of the intention of the present rules I see no alternative but to be explicit.

Proportionality must be seen to be the norm, not the exception- the starting point, rather than an afterthought. Proportionality guidelines are not simply “available”. The “broad and liberal” standard should be abandoned in place of proportionality rules that make “relevancy” part of the test for permissible discovery, but not the starting point.

If embraced by the courts, parties and their counsel, such proportionality guidelines offer hope that the system can actually live up to the goal of securing for the average citizen, “a just, speedy and inexpensive determination” of his or her case.

Regarding the meaning of proportionality, Master Short adopted the factors set out in the American case Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D.421 (S.D.N.Y. 2002), which are a degree more detailed than those factors now embodied in Rule 29.2.03.

Warman v. National Post Company, 2010 ONSC 3670 (CanLII).

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