Lawyers should always engage in effective discovery planning

A recent Ontario Superior Court decision is a helpful reminder to lawyers that they should be engaging in effective discovery planning, says Toronto insurance defence lawyer Heather Vaughan.

“Discovery plans have been in place as part of the Rules of Civil Procedure since 2010,” says Vaughan, a partner with Benson Percival Brown LLP. “While reforms to the discovery rules were implemented almost eight years ago, there are still some portions of the bar who are not using them effectively — if at all.”

Rule 29.1 was changed to require all parties to an action to agree to a discovery plan if they intend to obtain evidence through documents, oral examination, inspection of property, medical examination or examination for discovery by written questions.

In the matter, the plaintiffs brought a motion to have the court impose a discovery plan on the defendant insurers in the context of an insurance action.

‘Go back to the drawing board’

Both parties were ordered by a case master to “go back to the drawing board” and come up with a discovery plan, finding it is not in the interest of justice to “have the court sift through the categories of documents requested by the defendants and determine, based on the pleadings, if they should be included in the plaintiffs’ affidavit of documents,” wrote Case Management Master Priti Tamara Sugunasiri.

“In my view, this is not the appropriate approach to discovery planning. The point of requiring parties to agree to a discovery plan is to discourage the historical murder mystery approach to litigation. The old approach to discovery was to meander through the plot with the hope of finding out ‘whodunnit.’

“The Rules change in 2010 reflects a cultural shift in which parties must think deeply about their cases early in the process with a view to having the most expeditious, cost-effective and efficient resolution of cases on their merits,” the ruling continues.

Vaughan, who was not involved in the matter and comments generally, says in her experience, discovery plans are not circulated and negotiated as often as they should be.

Don’t waste the court’s time

“It’s not widespread,” she says. “In this matter, the court has basically said it should not be involved in negotiating or helping to resolve the disputes regarding discovery plans. This is a waste of precious court resources. It’s a good reminder that lawyers need to meet and confer with opposing counsel and plan for discovery so that we have efficient proportionate productions.”

She says that even though the ruling notes that there may be instances when the boilerplate wording is best, it’s not encouraged.

“It’s probably wise to have a more negotiated and thoughtful plan,” Vaughan says. “I think the best practice is for lawyers to negotiate these discovery plans as soon as possible after the litigation commences.”