On November 2nd, Master McLeod of the Ontario Superior Court of justice dismissed a motion that sought an order to deal with alleged over-production because the parties did not collaborate in developing a discovery plan. He said the following about discovery planning:
Discovery planning is intended to permit the parties to map out the most efficient and effective way to organize the production and discovery needs of the particular action having regard to the complexity of the records, the issues in dispute and the amounts at stake. It cannot be an adversarial exercise. Planning is also intended to minimize the need for court intervention but obviously there will be situations in which there are legitimate disagreements. In a case managed environment a case conference may resolve this and in other cases the same end may be achieved by a motion for directions. Specific direction could have been sought on any of the occasions that this matter was previously before the court.
A case conference or a motion for directions may well involve competing discovery plans but establishing efficient and effective procedures for these matters must not itself become an occasion for adversarial advocacy. If that occurs the whole point of the exercise will be defeated. Certainly obtaining direction from the court should not normally require lengthy affidavits, voluminous documents, factums and briefs of authorities. A contested motion is a poor planning forum.
The parties were engaged in a construction lien action, but agreed to exchange production. Master McLeod stressed that an exchange of production in accordance with the Rules can be very wasteful in construction lien actions, but nonetheless denied relief. He said, “It is not appropriate to proceed without a plan and then to launch a motion that implies the other party is in breach of the rules or is doing its production wrong.”
Hat tip to Peg Duncan.