In the weeks to come, I will explore key aspects of the new Supreme Court Civil and Family Rules that will come into effect in British Columbia on July 1, 2010. The current rules governing the discovery process, including the production of documents and oral examinations, were among those targeted for revision.
Existing Rule 26 outlines the process by which a party can discover and inspect documents. A party can prepare a Demand for Discovery of Documents (often combined with a Notice to Produce) that, once delivered to another party, starts the clock ticking, requiring the recipient to prepare and deliver a list of documents within 21 days (in practice a strict deadline is often neither observed nor enforced). One difference found in the new Civil Rules, which falls within Part 7, “Procedures for Ascertaining Facts,” is the provision that each party must prepare and serve on all other parties of record a list within 35 days at the close of the pleading period, thereby eliminating the need for a formal demand.
Of greater significance, the new rule attempts to narrow the scope of document production by stipulating that the list must set out all documents that can prove or disprove a material fact at trial and all others that the party intends to use at trial. Compare this to our current rule which requires a party to list the documents “relating to every matter in question in the action.” How can relevance be assessed in this context? In practice, the test for discovery has been the 19th century Peruvian Guano case (The Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Co. (1882), 11 Q.B.D. 55). Under that test, the scope of possibly relevant documents is so broad that what can or should be disclosed is potentially limitless. The new Civil Rule 7-1 reflects the conclusion of the Civil Justice Reform Working Group that adherence to that test is no longer viable given the greater complexity of modern litigation and the prevalence and proliferation of electronic data. In the absence of a new standard for discovery, existing practices have become a barrier to resolving disputes in a cost-effective and timely manner. Yet only time will tell whether the intent of the new rule will effect tangible change to current litigation practices.
The broad scope given to the question of relevance has also impacted practices governing oral discovery. Next time, I will look at how the new rules address the use of interrogatories and examinations for discovery.