The judge in this matter issued a Case Management Memorandum regarding how certain documents were to be disclosed. Originally, plaintiff had sought disclosures in a format other than the disc that the defendant was prepared to produce.
The judge indicated that if the plaintiff continued with their motion to get the production in a specified format, they would have to provide facts and law to answer three questions before the Court:
- Is the data sought by the plaintiff available in the format sought?
- Why does the plaintiff require the production of the data in the format sought?
- What, if any, undue burden would be imposed on the defendants to produce the data in the format sought?
The judge went on to indicate that the answers to these questions would be based on the principle of proportionality found in Rule 1.04(1) of the Rules of Civil Procedure, as well as the e-discovery proportionality from the Sedona Canada principles (Rule 29.1.03(4)).
In this supplemental Memorandum to the original, the judge added a requirement that the parties each serve and file a “Proportionality Chart-Document Production” in the format determined by the Ontario E-Discovery Implementation Committee.
The charts can be found at http://www.oba.org/en/pdf/MD10-ProportionalityChart-v1-1.pdf