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Use of examination for discovery transcripts from previous case

In Khela v. Sidhu, 2004 BCSC 971, a family compensation action, Brooke J. ordered that a transcript from the examination for discovery of the plaintiff’s late husband in a separate action be produced.  The production was opposed on the basis that the actions related to different persons and different losses.  The court referenced the Peruvian Guano test and concluded that the transcript could contain information which may lead to a train of enquiry which could advance the applicant’s case or damage that of the respondent, an so permitted collateral use of the transcript.
 
In Beazley v. Suzuki Motor Corporation, 2008 BCSC 850 aff’d 2009 BCCA 57 transcripts from American proceedings were found relevant and ordered to be listed in that motor vehicle products liability case. The chambers judge dealt with the transcripts issue using relevance principles and said that where the documents from other proceedings are clearly relevant the implied undertaking will generally not limit production.
 
In Biehl v. Strang, 2009 BCSC 535 the plaintiffs in debt recovery action sought production of examination for discovery transcripts from a matrimonial action involving two of the defendants. In refusing the application and distinguishing Hoffman v. Percheson, 2008 BCSC 1267 Master Scarth held that the plaintiff had not presented sufficient evidence to establish that the transcripts sought would be relevant:
 
In Hoffman, the petitioner had obtained a copy of the respondent’s discovery in the divorce action, and the court concluded that a compelling interest had been established in that the respondent’s discovery evidence conflicted with evidence he had given in the foreclosure proceeding by way of affidavit…
 
I accept the submission of the defendants that the evidentiary foundation for making the order sought that was present in Hoffman, is not present here.  The plaintiff seeks to rely on the public interest in the efficient conduct of this action.  In my view, applying the principles in Juman, this does not amount to a compelling interest which would warrant setting aside the undertaking and requiring production of the transcripts or any portion of them.
 
(Biehl v. Strang, 2009 BCSC 535 at para. 13-14).
 
In Cochrane v. Heir, 2011 BCSC 477 ICBC defence counsel was released from the implied undertaking with respect to the examination for discovery transcript, and other documents, from an earlier action in which the plaintiff claimed similar injuries to the present action:
 
In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.
 
Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue.
 
(Cochrane v. Heir, 2011 BCSC 477 at para. 5-6).
 
 
This book was written by Michael Dew, a Vancouver lawyer who practices civil litigation, including representing claimants in motor vehicle accident claims, persons who have been denied insurance coverage by insurance companies, and persons dealing with builders lien issues.