NEW - Bard v Canadian Natural Resources, 2016 ABQB 267 (CanLII)

  • May 24, 2016

Date: 2016-05-24 Docket: 1001 12889. Nixon J. | Link

The plaintiffs requested an order compelling the defendants to produce a set of documents in their native format (Excel spreadsheets) although the defendant had already produced the files in TIFF format, in accordance with the discovery protocol agreed to in the litigation plan.

The plaintiffs argued that the TIFF files produced were impractical for the purposes of their lawsuit, which alleged breach of fiduciary duty and unjust enrichment stemming from the mismanagement of a carried account. The plaintiffs contended that the inability to manipulate large volumes of financial data (one TIFF was over 1,000 pages long) hampered their ability to demonstrate their claims. The plaintiffs further claimed that the metadata and embedded formulae in the Excel spreadsheets should be disclosed, as they could help to establish the facts of the case.

In response, the defendants argued, in part, that producing the Excel spreadsheets would impose disproportionate costs (1,000 hours of work and a cost of $50,000), and that the data for the Carried Account was not separate and distinct from the other financial data.

The court agreed that the TIFF files were less useful than native files, and ordered production of the native files. The court noted that where the ability to manipulate data is essential, courts should adopt a pragmatic approach when determining what constitutes meaningful disclosure. On this point, the court stated: “Producing records in an unusable format undermines procedural fairness and just results.” The court rejected the defendants’ claim that observance of the discovery protocol excused them from producing native files, noting that such protocols do not bar courts from issuing production orders.

The court held that while there is an implicit requirement that files be “reasonably accessible”, the request for native file production is proportionate given the nature of the case and both parties are sophisticated commercial entities. On the matter of the costs claimed by the defendants, the court expressed skepticism, noting that: “CNRL presumably kept original copies of the spreadsheets it delivered”. On the point that the data was not separate and distinct from other financial data, the court found that any burden arose from the defendant’s own failure to maintain separate accounts.