On November 15th, the Supreme Court of Nova Scotia dismissed a motion to amend a production order that caused a pension plan great difficulty given its committee members had used their work e-mail accounts to send and receive relevant communications.
The pension plan sued its investment advisors to recover investment losses. About a year ago the Court ordered it to conduct keyword searches involving 51 terms. This required the pension plan to search for e-mails sent and received by its committee members who held day jobs for the plan sponsor (a separate legal entity) and used their work e-mail accounts to send and receive relevant communications. Matters were made worse because the pension plan’s litigation counsel was actively engaged in matters adverse to the sponsor, which meant the sponsor was unwilling to let the pension plan review e-mails without first vetting them itself. The 51 terms produced too many responsive records for the sponsor, who objected to the pension plan. In response, the pension plan moved for relief. It argued that the 51 terms produced too many “false positives” and asked for an amendment.
The Court dismissed the motion. It held that an amendment to the order could only be justified based on “compelling reasons” given that the order was the product of argument, reasoning and a lengthy decision and because it would invite selective application of a narrower search (to the benefit of one party) than applied to all other data sources under the parties’ control. The Court held that the pension plan failed to meet this burden. It was unimpressed with the evidence adduced through counsel’s paralegal, who gave hearsay evidence about search quality analysis conducted by the pension plan’s litigation support company. The Court explained:
I have no direct evidence from CWL and am not satisfied that the evidence shows CWL to have the capability to reliably identify relevant documents subject to disclosure. I have little evidence upon which to assess the correctness of CWL’s assessment of what constituted a “false positive”. I am particularly concerned because the context in which the revised search was conducted intended to minimize the number of documents to be reviewed. I cannot say whether CWL sacrificed the quality of the search to meet the goal of reducing the quantity of captured documents.
The Court did not clearly rely on the committee members’ use of the sponsor’s e-mail system in dismissing the motion, but did comment that the pension plan’s situation was “of its own making.”
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