Listing of documents covered by the implied undertaking

In Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 it was held that listing a document in Part 1 of a list of document was a “use” of the document and so a violation of the implied undertaking: para. 49-52. However, the fact that the listing party has possession of documents subject to an implied undertaking should be indicated in the privileged section of the list of documents:

 

I believe that it would be appropriate for a party, from whom document disclosure is sought, to list those documents in its possession which are subject to an implied undertaking under part 3 of its list of documents.

(Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at para. 41).

 

Subsequent cases have confirmed that documents covered by the implied undertaking should be listed in Part 3 of the list of documents of the party in possession of them:

 

Generally, because of the special status impressed upon them by the implied undertaking and the requirement that the detail or content not be disclosed, they are to be listed as subject to privilege, that is, in Part 3 of the list.

(British Columbia v. Tekavec, 2012 BCSC 1348 at para. 31).

 

The purpose of the requirement to list documents subject to the implied undertaking in the privileged section of the list of documents is to put the opposing parties on notice that the documents are in the listing party’s possession so that the party receiving the list can apply for court order permitting disclosure of the documents even if the listing party would prefer that they not be fully disclosed in the current proceeding. Note that in addition to faulting the defendants for listing documents originally obtained from the plaintiff in a previous proceeding and still subject to an implied undertaking the court in Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 held that the plaintiff was required to list the documents on her list of documents:

 

The plaintiff concedes that the implied undertaking rule does not in any way shield her from her obligation to produce documents in her possession. The fact that the plaintiff considered that the defendants had acted improperly in using documents arising from the Earlier Actions did not constitute justification for holding her own obligations in abeyance. She was required to produce all relevant materials in her possession in accordance with Rule 26.

(Chonn v. DCFS Canada Corp dba Mercedez-Benz Credit Canada, 2009 BCSC 1474 at para. 54).