Canadian Clash: Ontario Adopts New Discovery Rules

American lawyers seeking to obtain discovery of witnesses, documents or electronic records in Ontario, Canada's most populous and litigation-prone province, have long been aware that the scope of discovery there--and in other Canadian jurisdictions--is considerably narrower than it is in the U.S.

This, of course, is a boon to corporate defendants for whom the cost of discovery will be significantly lower if a plaintiff who has a choice of forum chooses to sue in Canada rather than the U.S.

U.S. courts have held that information is "relevant" and discoverable if there is any possibility it may be relevant to the claim or defense. Unless it is clear that the information sought can have no possible bearing on the claims or defenses, discovery is allowed.

To balance this broad approach in the U.S., the proportionality doctrine expressed in Rule 26(b)(2) permits the responding party to object to discovery on the basis that producing the requested information would be unduly burdensome. To establish undue burden, the responding party must show that the information requested is of such marginal relevance that the potential harm the discovery may cause outweighs the presumption in favor of broad disclosure.

One of the advantages of discovery plans is that they encourage an incremental approach to limiting discovery.

"A reasonable approach in a complicated case might be to limit an e-discovery search to certain search terms that will yield 25,000 instead of 125,000 documents," Wortzman says. "After the first pass, which should yield the most relevant results, it should be easier for the parties to determine what else, if anything, is needed."


Julius Melnitzer

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