Document disclosure is a central element of civil litigation and many commercial cases involve hundreds, and sometimes thousands, of documents. On such cases, it is essential to be methodical when reviewing client files and listing relevant documents. This article summarizes some of the basic principles of the British Columbia law of document disclosure and explains some strategies for managing document disclosure.
2. The law of document disclosure
2.1 Everyone’s approach is different
There is no single "correct" approach to document disclosure. Indeed, almost every lawyer will have their own approach; a somewhat disconcerting thought given the importance of document disclosure to the civil litigation process. However, the British Columbia Supreme Court has explained that listing and disclosing documents is a task that calls for flexibility and ingenuity:
The Rules and the authorities contemplate that the method of listing and disclosing documents will vary from case to case. A method or format will comply with Rule 26 where it meets the central objectives of disclosing documents and does so in a manner that puts the disclosing party clearly on record as to what it is disclosing.
(Homalco Indian Band v. British Columbia (1998), 56 B.C.L.R. (3d) 114 at para. 26).
[T]he ingenuity of counsel in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the discovery process…
G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1992), 14 C.P.C. (3d) 74, 1992 CanLII 2189 (B.C.S.C.)
Thus, to some extent, the document disclosure process allows counsel to develop an individualized approach to each case.
2.2 Relevant documents must be listed
Rule 26(1) of the Rules of Court, B.C. Reg. 221/90 states that a party may request a list of relevant documents from the opposing party:
Delivery of and answer to demand for discovery of documents
26(1) A party to an action may deliver to any other party a demand in Form 92 for discovery of the documents which are or have been in the party's possession or control relating to any matter in question in the action, and the other party shall comply with the demand within 21 days by delivering a list, in Form 93, of the documents that are or have been in the party's possession or control relating to every matter in question in the action.
The “matters in question” are defined by the pleadings. The phrase "relating to any matter in question in the action" was given a broad meaning by the famous case of Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at 63 (C.A.) [Peruvian Guano]:
[E]very document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. (Emphasis in the original).
In Visa International Service Association v. Block Bros. Realty Ltd. (1983), 45 B.C.L.R. 305 at 308 (S.C), Spencer J. added the following to the above passage:
To that may be added the requirement that each party must also reveal those documents which will advance the case of the party giving discovery. His opponent is entitled to know what documents he will reply upon in his own case.
Indeed, Rule 26(14) provides that a party may not use a document if it did not make discovery of it, or produce it for inspection.
In cases involving many documents the test from Peruvian Guano may not be applied strictly. In Peter Kiewit Sons Co. of Canada Ltd. v. British Columbia Hydro and Power Authority (1982), 36 B.C.L.R. 58 at 92 (S.C.) [Peter Kiewit] the court said that in cases involving thousands of documents of only possible relevance, the disclosing party will not be required to review all of them:
I respectfully decline to follow the Peruvian Guano case, supra, or slavishly to apply Rule 26(1) in a case such as this, where thousands or possibly hundreds of thousands of documents of only possible relevance are in question. I do not intend to suggest, however, that the Peruvian Guano case does not correctly state the law in most cases. That question does not arise for consideration here.
(Peter Kiewit at para. 22).
McEachern C.J.S.C. went on to say that the plaintiffs in that case (who were seeking additional disclosure) had to define a more manageable area of inquiry for the defendants to focus on when listing relevant documents, and that the plaintiffs had to establish a prima facie case that something relevant would be uncovered in the proposed area of focus.
2.3 Counsel, not the client, must determine relevance
It is the duty of the lawyer, and not their client, to ensure that all relevant documents are disclosed. In G.W.L. Properties Ltd. v. W.R. Grace & Co. of Canada Ltd. (1993), 14 C.P.C. (3d) 91 at para. 21, 1992 CanLII 2189 (B.C.S.C.) [G.W.L. Properties] Lowry J. (as he then was) approved of the following statement regarding the duty of counsel to determine relevance:
The decision of what is and what is not relevant must lie initially upon counsel preparing the list. Our rules depend upon his or her diligence in searching out from the client what documents are or have been in its possession and upon his or her integrity in listing those which are relevant. The decision of relevance must not be left to the client even where the client includes upon its staff a member of the bar of this or any other country. The decision must be counsel's: [Visa International Service Association v. Block Bros. Realty Ltd. (1983), 45 B.C.L.R. 305 at 308 (S.C.)]. See also Boxer v. Reesor (1983), 43 B.C.L.R. 352 at 357 (S.C.).
2.4 Listed documents must be described
Rule 26(1.3) sets out how documents must be listed:
Documents to be enumerated
(1.3) Documents to which there is no objection to production must be enumerated in a convenient order and include a short description of each.
Generally, documents should be listed singly and should be numbered to correspond with the numbers appearing in the list of documents. However, in G.W.L. Properties at 82, Lowry J. held that the nature or the list of documents will depend on the circumstances of the particular case:
There is, of course, some flexibility in the form of list that will be most suitable in any given case. Generally, the party giving discovery is in the best position to decide on the format that will enable the opposing party, upon reading the list, to understand what the documents listed are about. It is not always possible, or desirable, that documents be listed individually by date as the plaintiffs wish in this instance. Sometimes, where large volumes of documents are produced, a more worthwhile description can be achieved by grouping documents, or files of documents, that relate to a particular subject, or time period, or geographical location of origin, or some other relevant common ground. Groupings of documents may, in some circumstances, be quite large. What is important is that the list provide the party seeking discovery with a meaningful, reliable, and complete disclosure as well as an effective aid to retrieving the documents produced when an inspection is conducted. What is required in each case depends on the nature of the documentation that must be described. In my view, the ingenuity of counsel in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the discovery process, at least in the conduct of complex commercial litigation that involves large volumes of documents generated from a variety of different sources over a period of many years as in this case.
In Homalco Indian Band v. British Columbia (1998), 56 B.C.L.R. (3d) 114 at para. 24 Madam Justice Lynn Smith provided the following additional guidance on bundling of documents:
I think that a file can be a "bundle" where there is a unifying principle underlying it, as there is here, and where the volume of materials in the case makes individual document-by-document listing too onerous, time-consuming, and expensive, as it does here.
2.5 Documents must be listed even if the opposing party already has them
It is clear from the wording of Rule 26(1) that all relevant documents in the party’s possession must be listed. Therefore, documents must be listed even if they have already been listed and disclosed by another party. One reason for this is that the fact that a party had a copy of a document may be relevant.
2.6 Privileged documents must be listed but not disclosed
The duty to disclose relevant documents is, of course, subject to privilege, including solicitor client privilege. Rule 26(2) provides as follows:
Claim for privilege
26(2) Where it is claimed that a document is privileged from production, the claim must be made in the list of documents with a statement of the grounds of the privilege.
2.7 Insurance polices must be listed
In the summer of 2007 the British Columbia Rules of Court were modified to require disclosure of insurance policies:
26(1.4) A party must ensure that there is listed in the list of documents prepared under subrule(1) any insurance policy under which an insurer may be liable
a. to satisfy the whole or any part of a judgment obtained in the action, or
b. to indemnify or reimburse any party for any money paid by that party in satisfaction of the whole or any part of such a judgment.
2.8 Delivering copies of listed documents
The disclosing party is required to copy the documents on its list and provide them to the opposing party, but the receiving party is required to pay for them:
Copies of documents
26(9) Where a party is entitled to inspect documents in the possession or control of another party, the other party shall, on request, deliver copies of any of the documents, if reproducible, on payment in advance of the cost of reproduction and delivery.
In Gillespie v. Gillespie (1997), 35 B.C.L.R. (3d) 92, 1997 CanLII 760 (B.C.S.C.) Vickers J. said that it is not always necessary for the producing party to deliver copies of all the documents listed:
In my view, Rule 26(9) did not contemplate the wholesale copying of files. This is an unnecessary waste of time and materials and will only serve to increase the cost of litigation. When a list…reveals many documents in a single file or many documents of a particular class or type, there is a burden on the party receiving the list to conduct a review of the listed document and then request copies of those portions which the party requires. In this case files of documents, listed by subject matter or type of document should be reviewed. There is no burden on the defendant to produce copies of whole files where large portions of those files may be of no value to the issues that remain to be tried.
3.0 Suggested approach for collecting and listing documents
As noted above, there is no single “correct” approach to disclosure of documents, and each lawyer will have his or her own preferred practice. The remainder of this article sets out one possible approach to the listing and disclosure of documents in a hypothetical case: assume you are a lawyer acting for a contractor who constructed an apartment building with a leaky roof. Assume that the architect, another defendant in the action, has claimed that the contractor (your client) was sent informal correspondence with instructions on how to modify the design to ensure it would be waterproof, but failed to follow those instructions.
3.1 Record what you have done
Before outlining the steps that may be taken for the hypothetical example, it is worth emphasizing the importance of recording what you have done during the disclosure process.
Keeping track of what steps you have taken in performing your disclosure obligations is important for many reasons. First, you should keep track of what you have done so that if you do not work on the file for a few weeks, you have notes to remind you of where you left off. Second, if you have to hand the file on to another lawyer for any reason having notes will be useful for communicating what has been done and what has yet to be done. Third, your notes will be proof that you were reasonably thorough in your document review and you will be able to rely on them if it is suggested that you did not take sufficient care in complying with your disclosure obligations.
The suggested approach is to record what has been done in a Microsoft Word document that consists of two parts: a numbered list; and a table.
o The numbered list provides a narrative of what major steps have been taken in the disclosure process e.g. “Asked the client for documents relating to X.” This list will grow as additional steps are taken in the disclosure process.
o The table is used to record details of which specific files have been reviewed. Each file reviewed should be listed in column 1 of the table and, as steps are taken to review, list, and copy the documents in that file, notations explaining those steps should be added to additional columns in the table.
Regardless of whether or not this list and table approach is used, some form of paper trail which shows what has been done should be kept.
3.2 Obtaining documents from the client
For the hypothetical leaky roof case, counsel for the contractor may take the following steps to ensure that all possibly relevant documents are obtained from the client:
o Ask the client for an index to the filing system used on the project. In our example, the contractor should have a filing system for all the documents related to the construction of the building. There will probably separate files for "site clearing", "excavation", "foundations", "walls", "roof", "carpets", "ventilation", "roof waterproofing" etc. There will also likely be general files like "correspondence", "change orders", etc. Obtaining an index of the filing system is a useful way to narrow your search.
o In most offices, rather than digging into the official filing system each time a document is needed, most people will keep a personal file which is a mirror version of a file in the official filing system. For example, the project manager for the contractor will likely have his or her own “correspondence” file. Normally the intention will be to merge this personal file into the main filing system at the end of the project. Ensure that this has been done i.e. don't just assume that the files in the main filing system contain all relevant documentation.
o Quiz the client on where other relevant files may be located.
o Ask about emails and electronic documents that may not have been printed and added to the paper files.
Given the importance of what correspondence was sent and received in our example, it would be important to be especially thorough in the last two steps listed above.
Clearly the above approach would not be applicable in every case. Rather, as indicated by the case law discussed above, the ingenuity of counsel is required to design an effective process for uncovering the relevant documents in each case.
It is an interesting question whether, if the client provides a file index in step 1, you should disclose it. Arguments against disclosing it include the following: First, the duty to assess what should be disclosed is on counsel for the disclosing party, not opposing counsel. Second, the index would not help prove or disprove any of the issues raised by the pleadings.
3.3 Deciding what documents to bring back to the office to review
After reviewing the file index provided by the client, or otherwise arriving at a list of possibly relevant files, list them in column 1 of the table described in section 3.1 above and ask the client to provide you with those files.
Since the hypothetical case involves a leaking roof, many of the files on the file index will not be relevant. For example, the "site clearing" file is clearly not relevant and need not be listed in column 1 of the table. Other files are clearly relevant e.g. the "roof waterproofing" file, and would be listed in column 1 of the table. Other files may or may not be relevant e.g. the "ventilation" file: if the ventilation outlets pass through the walls then that file would not be relevant to a leaking roof, but if the ventilation outlets pass up through the roof, the file may well be relevant. Therefore, it would be prudent to take at least a brief look at the ventilation file, and so it should be listed in column 1.
Briefly review each of the files listed in column 1 of the table by flipping through them to determine if they contain relevant documents. For each file, make an appropriate annotation in column 2 of the table e.g. "Not applicable" or "Relevant". At the end of that process you will have a list of files to be reviewed in detail i.e. all those with a "relevant" notation in column 2. Those are the files that you would bring back to your office for detailed review. Although not all of the documents in the "relevant" files will be relevant, you should not disrupt the client’s filing system by pulling out selected documents. Instead, bring each file containing relevant documents back to your office where you can copy just the relevant ones.
3.4 Create an organized set of original documents
Place the relevant files in a box (or boxes) in some logical order e.g. date, alphabetical, following the order they appeared in on the clients filing index, etc.
If you use a different order to that used in column 1 of the table, reorder the table so that it is an index of the files as you have arranged them.
You now have an original set of client documents to be reviewed, and an associated index. This set of files should be returned to the client in the same state:
o Do not remove originals from the file except for a few seconds to make a copy, and then return the original to the file.
o Do not punch, staple, or write on the original documents.
o Do not mix up the order of the original documents in the client’s files.
3.5 List the relevant documents
Designing the list
There are many different ways to list documents. Apart from choosing what program to create the list in (Microsoft Word, Microsoft Excel, Summation, etc.), you have to choose what information you will list for each document. Again, each lawyer will have his or her own ideas about what information the list of documents should contain.
Typically the document list will be created using a table format. In deciding how to record document information in the list, it is important to consider what you will want to do with the list once it is completed i.e. how will you want to modify or manipulate the data in the list. Being able to electronically sort the list of documents to create a date ordered list is valuable for at least two reasons. First, documents are often referred to by date when discussing the case and having a date ordered list allows one to quickly lookup documents to determine where they are filed. Second, there may be a particular period of time in which important events occurred and having a date ordered list allows one to identify what documents were created during that period. Being able to create a date ordered list is most useful for cases involving many documents and dealing with events occurring over an extended period.
Depending on how cooperative opposing counsel is, you may be able to merge your list with theirs in Excel to create a giant date ordered list for all documents listed by all parties.
To allow the list to be date sorted in Excel, after copying and pasting from Word or Summation if necessary, at least three issues must be considered:
At a minimum, the following column headings are recommended for the table:
o Start page # = The stamped number of the first page of the document (this assumes that the documents will be copied and number stamped, which may not be the case – see discussion below).
o End page # = The stamped number of the last page of the document (this assumes that the documents will be copied and number stamped, which may not be the case – see discussion below). For one page documents the start page number and the end page number will be the same.
o Date = The Date the document was created.
o Description = A description meeting the requirements of Rule 26(1.3).
Other possible additional column headings include the following:
o Author = The last name of the person who signed the document. Not all documents will have an “author”, but adding this information allows the list to be sorted alphabetically by author to group all documents created by a particular person.
o Recipient = The last name of the person to whom the document was addressed. Not all documents will have a “recipient”, but adding this information allows sorting to obtain a list of documents received by a single person.
o Party = Name of the party producing the document i.e. “Contractor” in our example. This is useful if you plan to merge lists provided by different parties to create the giant date ordered list described above. However, it is easy to add this column in Excel later on, just before you sort the documents.
o Source file = The name of the client file containing the document. If you are not planning on copying all documents listed (see discussion below), this data should certainly be included so that you will know where to find the document for copying should you, or another party, want a copy.
Selecting a date to use
When documents have multiple dates, it is best to use the "most permanent" or "oldest" date when listing the document.
For example, documents may be date stamped when sent or received. This date may be later than the typewritten date on the document.
In other cases clients send faxes or letters with incorrect dates e.g. because they modified the electronic version of an old letter and forgot to modify the date before sending the new letter. Sometimes such errors are later corrected by handwriting on the originals. When listing documents it is best to use the original typed (incorrect) date. This is because there may be other copies of the uncorrected original listed by other parties (e.g. if after the document was sent, only the sender or the recipient made the correction).
Using the date that is most likely to be on all copies of the document maximises the chances you will find the document on the date ordered list. Alternatively you could list the document multiple times, once for each date, and include explanations to that effect in the descriptions provided.
Avoid listing documents as “undated” wherever possible. If the document was not dated by the author, review the contents of the document and try to figure out the approximate date it was created on. List the document using your best guess for the date, and include an explanation to that effect in the description provided.
Listing “attached” documents
It is common for clients to send or receive a letters with a number of documents attached. Many of the attached documents may have their own dates. The attached documents will typically be stapled to a cover letter in the client's file. The bundle should not be described as “cover letter with attached documents”, and entered on just one line in the list, because that won’t allow sorting to create a useful date ordered list. Rather, the cover letter should be listed on one line, and every attached document should be listed on a separate line with its own date entered in the date column. The “Start page #” and “End page #” for the cover page entry should describe the entire bundle. The “Start page #” and “End page #” entries for the attached documents should describe just that one attached document. It is essential that the dates for all documents are all listed in the same column of the table such that the information can be sorted by date order using Excel.
The above method for listing attached documents will result in overlap of “Start page #” and “End page #” entries i.e. the entries for the dated attached documents will be subsets of the “Start page #” and “End page #” range for the cover page. The method may also lead to relisting of documents e.g. when the same document is attached to two different cover letters on different dates. Such duplication is tolerated because it allows one to use a date sorted list to determine who was sent document X and on what dates. In the date sorted list there will be successive lines for document X and by using the various “Start page #’s” you can locate the cover letters the documents were attached to in each case. This makes the date ordered list very useful for determining how many times, and when, a party was sent or received a particular document.
3.6 Copying documents
Deciding what to copy
There are at least three approaches to copying documents:
o Copy all the listed documents;
o Copy only some of the listed documents
o Scan the listed documents into a computer database
If either of the first two approaches are used, the copied documents should be number stamped and the page numbers added to the list of documents. If approach two is used, the source file for each document not copied should be noted in the list of documents to allow retrieval of the document for copying at a later date.
To communicate which documents should be copied, plastic tabs (half clear-half coloured) can be used. These tabs can remain on the documents during copying if they are placed with only the clear part of the tab over the document. Paper can be fed through the automatic feed of the photocopier with plastic tabs attached. If only some of the relevant documents will be copied, different coloured tabs can be used to indicate which documents should be copied.
It is good practice to provide very detailed instructions to the person who will copy the documents. The instructions will depend on the quantity and type of documents, but some of the following may be applicable:
o Do not disrupt the order of the documents. [This means: do not collect all tabbed documents and put them through the automatic feed at once; if that is done the documents will never be put back in the correct order in the client files.]
o If all the documents in a file need to be copied, and none of the documents are paper clipped or stapled, they may be put through the automatic feed.
o If selected documents in a file are tabbed for copying, copy those pages individually and do not remove the tabs. [This requires using plastic “half-coloured, half-clear” tabs].
o Stapled documents: remove the staple, copy the documents, re-staple the documents.
In most cases clients will want their documents back and in many cases they will want to obtain information from those files in the future. For example, the contractor in our hypothetical case may want to review what unit rates were used when pricing future projects. Therefore, client documents should be treated with care and not be mixed up.
3.7 Supplementary lists
If additional relevant documents are discovered as the case proceeds, they should be disclosed i.e. the disclosure obligations are ongoing. New documents should not be added to a list that has already been issued. Rather, a supplementary list should be created:
Supplementary list of documents
26(13) Where, after a list of documents has been delivered under this rule,
(a) it comes to the attention of the party delivering it that the list was inaccurate or incomplete, or
(b) a document relating to a matter in question in the action comes into the party's possession or control,
the party shall deliver forthwith a supplementary list specifying the inaccuracy or document.
When listing documents on the supplementary list, do not start document or page numbering from one, but carry on the numbers from the previous list.
Listing and disclosing documents in civil litigation is a sometimes tedious but very important process. On cases involving many documents it is essential that counsel devise a methodical approach to listing and copying documents. Although there is no one “correct” approach to document disclosure and methods developed in the past will have to be tailored to the particular case, the following basic principles will almost always apply:
o Do not assume the client understands what needs to be disclosed and will provide all relevant files; take the initiative to seek out documents and quiz the client to ensure that all possibly relevant files are reviewed.
o Keep a record of what you have done and what is yet to be done.
o Do not disrupt the client files by removing the original documents from the client files (except momentarily for copying).