Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50873
All of these new rules really count on the co-operation and, in some ways, the civility of counsel. So where you have counsel who wish to use the new rules as a tool to create ineffi ciency and create new costs into the process, I think the rules are sort of allowing for that right now. GORDON JERMANE, Manulife Financial Nova Scotia: The new Nova Scotia Civil Procedure Rules came into force on Jan. 1, 2009. Section 14.01 alters the notion of rel- evance in discovery and disclosure to a simple relevance test, from the previous "semblance of relevance." Rule 14.07 allows a judge to force the receiving party to pay the costs of disclosure if it is needed to "achieve proportionality," and if "the expense is not the result from an ineffective or unreasonable records retention policy." The province's new Rule 14.08 presumes that full disclosure is required, but that can be altered with Rule 14.08(3) if a party can show it is needed for the "cost, burden and delay" to be in proportion to the value of the evidence and the significance of the proceeding to the parties. Alberta: While Alberta didn't specifically address proportionality in its new rules that came into force in November 2010, they did retain previous obligations that now appear in Rule 5.6(1)(b). The rules specify that documents must be both "relevant" and "material," and expected to signifi- cantly help determine one or more of the issues raised in the pleadings; or ascer- tain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings. – Compiled by The Sedona Conference Institute. intent of the new rules, which seek to streamline the process and avoid stalled litigation. Nevertheless, DiPucchio remains optimistic the rules still have the potential to serve as a positive development for corpo- rations involved in litigation. He sees corporate counsel playing a big role in making that hap- pen. "If in-house counsel are prepared to take the time to get to learn about the way docu- ments are retained in their orga- nizations, and the types of docu- ments that are retained, then the payoff in large commercial cases might be quite visible, if they're able to successfully resist docu- ment requests that are otherwise excessive or unreasonable." Melanie Schweizer, senior litigation counsel at Bell Canada, is the type of corporate counsel who has embraced the rules and placed her organization ahead of the game. She believes proportionality has made it easier to confront opposing counsel to reach reasonable agreements on discovery plans. It's also made it more likely that counsel will successfully lobby for a staged approach to discovery, which can help move litigation forward in a more expeditious and cost-effective manner. Rather than starting production by disclosing everything relevant and available on a company's global document storage system, for example, it's now easier to start off by handing over a single, most relevant database. The primary drawback to proportionality, as Schweizer sees it, is the fact that it means different things to different people. The definition is sure to tighten as case law develops, and in the meantime it gives counsel some wiggle room to make creative arguments. On the other hand, uncertainty is rarely a good thing. "I hope it isn't the case the courts say, 'If you have a defendant with sufficient resources, anything is proportionate, because to spend a couple million dollars is no big deal to a large public company,'" says Schweizer. "I think the downside could be in how it's interpreted, and the fact that it isn't a bright-line test." Meanwhile, Schweizer believes corporate counsel may need to spend some time educating outside counsel if they wish to get the most out of the INHOUSE APRIL 2011 • 21