DISCOVERY PLAN: THE AGREE TO DISAGREE APPROACH
(this article originally appeared in the Lawyer’s Daily on March 6, 2023)
In Ontario, Rule 29.1 of the Rules of Civil Procedure (Rules) imposes an obligation on litigation counsel to meet, confer and to create a written discovery plan before documentary production and discovery get underway. In context of litigation, discovery planning represents the first real opportunity for counsel to work co-operatively together 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. Discovery planning should not be an adversarial exercise.Nor should it be used as a weapon to impede the progress of the action. Where parties cannot agree on a discovery plan, the court has discretion to impose one. Obviously, there are situations in which there are legitimate disagreements, which may require the court’s intervention by means of a case conference or a motion. A case in point is Rooke v. Deloitte, 2023 ONSC 1046, where the court dealt with a motion seeking finalization of the discovery plan in context of the wrongful dismissal action. The court endorsed the “agree to disagree” approach to the discovery plan. It reaffirmed that discovery planning is intended to be a collaborative process and that the consequences of failing to agree on the discovery plan can be significant.
Rule 29.1 resulted from the Discovery Task Force chaired by Justice Colin Campbell and the Civil Justice Reform Project chaired by former justice Coulter Osborne. In Deloitte, the court observed: “[7] [b]oth studies concluded that discovery planning was an essential step in efficiently moving a dispute towards a resolution, and that this, in turn required not only a rule amendment but a ‘cultural shift’ and the development of best practices.”
In Kaymar Rehabilitation v. Champlain CCAC, 2013 ONSC 1754, a motion to determine whether or not the defendant may properly claim privilege over the contested documents and thus refuse to produce them, master Calum Macleod explained: “[33] [t]he objective of a discovery plan of course is not to ensure that every document has been located with perfect precision. Rather it is the objective to reach agreement on the search methodologies and procedures so that both sides can be assured that reasonable efforts have been made taking into account the needs of the litigation and the resources it is reasonable to bring to bear on this phase of the problem.”
Pursuant to Rule 29.1.03, the parties to an action are required to agree to a written discovery plan before the earlier of 60 days of the close of pleadings (or such longer period as the parties may agree to) and attempting to obtain the evidence in accordance with Rules 30-35. However, in practice, counsel tend to overlook the said 60-day deadline.
In Oakdale Kitchens v. Williams & Partners, 2011 ONSC 3375, a motion for a further and better affidavit, master Donald Short observed: “[36] [a]lthough the legal press has reported that a segment of the bar appears to be treating this requirement with disdain, until the rules committee directs otherwise, it seems to me that the Rule has to be given some teeth.” In Deloitte, Justice Ian Leach added: “[6] Rule 29.1.01 may or may not be ‘more honoured in the breach than the observance … .’” however “[7] …Rule 29.1.01 obviously is a rule, and one that was introduced to address a clearly identified need.”
In practical terms, what these decisions signal is that on a motion to finalize or impose a discovery plan, the court will hold the failure to agree on the discovery plan within 60 days against the party offending the Rule. In this regard, Rule 29.1.05 empowers the court to refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan.
In Deloitte, the plaintiff was pressing for finalization of a discovery plan to the extent that could be agreed to and for an updated discovery plan that addressed the outdated aspects of the previously discussed version. At some point, the plaintiff’s counsel accused the defendant’s counsel of being solely responsible for delays. As a consequence, their relationship quickly deteriorated, resulting in a motion.
The court finalized the discovery plan for the parties by imposing a number of terms. In the process, Justice Leach noted that the plaintiff’s counsel approach of documenting, in the discovery plan, a particular line, area or extent of discovery that one party contemplates pursuing, while simultaneously noting that the other party currently has reservations in that regard, was a sensible one. Through such an approach, the parties can succeed in narrowing discovery, and focusing the attention of all concerned on areas of acknowledged relevance and likely disputes while moving the litigation forward by essentially “agreeing to disagree” for the time being. Notably, a discovery plan is not supposed to be immutable. Rule 29.1.04 explicitly imposes an ongoing obligation on the parties to update the discovery plan to reflect any relevant changes in order to plan for effective, efficient and proportionate production and discovery.
Deloitte exemplifies that when the parties are unable to agree on a discovery plan, accusations of delay may be levied by counsel and emotions flare up, resulting in adversarial advocacy and a deterioration of the relationship between counsel. This may also lead to a contested motion, which is a poor discovery planning forum. In Oakdale Kitchens, Short offered a sentiment that is likely to be shared by many judges: “[35] … it seems to me that at least 90 minutes of court time could have been saved for more pressing matters had the parties endeavoured to focus on coming to an agreement with respect to a discovery plan as required by the Rules,” and awarded no costs to either party.
Litigation counsel should expect to be rebuked for pettifoggery and be judged on the reasonableness of their approach to discovery planning. This is so, because the central aim of requiring a joint discovery planning is to reduce the number of disputes, streamline the process, minimize the complexity, avoid delays and wasted costs.
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Nikolay Chsherbinin is a civil and employment lawyer at Chsherbinin Litigation. He is the author of The Law of Inducement in Canadian Employment Law. He can be reached at 416 907 2587, [email protected] or by visiting nclaw.ca.