The Plaintiff brought an action for defamation against the Defendants. After filing a broad Statement of Defence asserting “justification” and receiving the Plaintiff’s productions, the Defendant brought a motion seeking a mirror image of the hard drive on the plaintiff’s personal computer or, in the alternative, an order requiring the plaintiff to turn the hard drive over to a mutually agreeable expert who will examine it and produce all relevant documents and information, including meta data, to all parties.

The Court concluded that the hard drive should be examined by an independent computer expert but, “given the move away from ‘semblance of relevancy’ signalled in the new Rules in Ontario and the necessary greater consideration of proportionality, [Master Short was] not satisfied that the defendant ought to be given the broad access to all the, possibly existing, data he seeks.” Instead, the examination was restricted to very limited areas, with specific direction being given by the Court.

In considering the Defendant’s request, Master Short acknowledges the incredible burden of discovery in the litigation process. To mitigate against this burden, Master Short emphasizes the importance of the Court’s use of “proportionality” when determining whether to grant the defendant his remedy. In particular, he points to the recent amendments to the Ontario Rules of Civil Procedure, namely

  • The change from “relating to” a matter in issue to “relevant to” a matter in issue which, he believes, signals an expectation that no longer expects “broad and liberal” discovery in Ontario;
  • Rule 31.05.1, which establishes the new basic time limitation in “regular” cases on examinations for discovery of seven hours per party, and Rule 76.04(2), which establishes a two hour limit for simplified procedure cases.

He also points to The Sedona Canada Principles which recognize a rule of proportionality, and four important considerations to consider in the discovery process, at Principle 2.

For further clarification of the factors to be considered in weighing proportionality, Master Short turned to the decision of U.S. Magistrate Judge James C. Francis IV in Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002), where an eight-factor proportionality test for e-discovery was developed. This test considers:

  1. the specificity of the discovery requests;
  2. the likelihood of discovering critical information;
  3. the availability of such information from other sources;
  4. the purposes for which the responding party maintains the requested data;
  5. the relative benefit to the parties of obtaining the information;
  6. the total cost associated with production;
  7. the relative ability of each party to control costs and its incentive to do so; and
  8. the resources available to each party.