Date: 2008-06-11 Docket: 0701-0179-AC. | Link
Reasons for judgment reserved by Carole Conrad J.A. Appeal from an order by the case management judge to produce the imaged hard drives in specie and of drives containing the "hybrid" files (those patients whose care was partially funded by the CHR). The Court prefaced its analysis with a number of comments about the current state of electronic discovery: "The widespread use of computers for record keeping, communication and information storage has vastly expanded the breadth of potential discovery in litigation. Although technology is helpful in the sense that it makes fuller disclosure possible, it also creates an unfortunate paradox. The cost of sorting and producing all the relevant information in a party's possession may put litigation beyond the economic ability of a vast number of litigants. Thus, it is necessary to ask such questions as: How much discovery is enough? Do all cases justify the same type of disclosure? Should there be some rule of proportionality that governs production based upon the issues in the lawsuit? How is irrelevant and immaterial information protected from production in those situations where a court orders production of a hard drive for examination by an expert? Who pays the cost?" (para 23). The Court cited Section 6.1.4 of QB Civil Practice Note 14, which urges parties to consider "[T]he desirability of limiting search efforts for any category of Discoverable Records where these efforts are considered to be unduly burdensome, oppressive or expensive having regard to the importance or likely importance of this category of Discoverable Records to the proceeding." Finally, the Court refers to Sedona Canada Principle 2 on proportionality.