Discovery and Privilege I:
Documentary
Discovery and
Privilege
Central Themes:
1. The heart of our adjudicative model
is the belief that a judge or jury,
given access to all of the relevant
facts in a dispute, will come to a
decision which reflects fairness
and truth; and,
Central Themes:
2. The voluntary settlement of
ongoing claims brings efficiency to
our system (through reduced time
and costs) and, as a result,
enhances fairness and access to
justice.
Types and Forms of
Discovery :
1.
Discovery of Documents (R. 30),
2.
Examination for Discovery (R. 31),
3.
Physical or Mental Examination (R. 33),
4.
Inspection of Property (R. 32).
Purposes of Discovery:
1.
2.
3.
To enable the examining party to
know the case that it has to meet;
To procure admissions to enable one
to dispense with formal proof;
To procure admissions that may
destroy or impair an opponent’s case;
Purposes of Discovery:
4.
5.
6.
To facilitate settlement, pretrial
procedure and trials;
To eliminate or narrow issues; and,
To avoid surprise at trial.
Lawyer’s Duties re:
Discovery
From Rule 4.01 of the R.P.C.:
1.
The lawyer shall explain to her client:
a.
the necessity of making full disclosure of all
documents relating to any matter in issue, and
b.
the duty to answer, to the best of his or her
knowledge, information and belief, any proper
question relating to any issue in the action or
made discoverable by the rules.
Lawyer’s Duties re:
Discovery
From Rule 4.01 of the R.P.C.:
2.
The lawyer shall assist her client in fulfilling
his or her obligations to make full
disclosure; and
3.
The lawyer shall not make frivolous
requests for the production of documents
or make frivolous demands for information
at the examination for discovery
Discovery of Documents
(Rule 30):
Rule 30 imposes two distinct disclosure
obligations:
1. A party is required to disclose the
existence of all documents that are
relevant to the action; and,
2. A party is required to produce for
inspection by all adverse parties, all such
relevant documents over which the party
does not claim privilege.
The Disclosure Obligation:
Rule 30.02(1) details the disclosure
obligation:
Each party must swear and serve an
affidavit of documents that includes
“every document relating to any matter
in issue in an action that is or has been
in the possession, control or power of
a party to the action..”
The Production Obligation:
Rule 30.02(2) details the production
obligation:
Each party must produce for inspection
“every document relating to any matter
in issue in an action that is in the
possession, control or power of a
party...if requested, unless privilege is
claimed in respect of that document”
Peter Kiewit Sons v. BC
Hydro (BCSC,1982) (CB 709)
(from page 713): “The time has arrived,
in my view, for the court to become
concerned about the cost of
litigation, subject, of course, to the
right of any party to the court’s
assistance in the reasonable
preparation of his claim or
defence”.
Rule 30: Documents and
Power?
What is a ‘document’ according to Rule 30?
30.01(1)(a) holds that a document includes:
a sound recording, videotape, film,
photograph, chart, graph, map, plan,
survey, book of account and information
stored by means of any device (ie.
computer disk and email
communications are captured)
Rule 30: Documents and
Power?
What is meant by the obligation to
disclose/produce documents in the
possession, control or POWER of a party?
30.01(1)(b) provides that a document shall
be deemed to be in a party’s power if that
party is entitled to obtain the original
document or a copy of it and the party
seeking it is not so entitled.
The Affidavit of Documents
1.
Within ten days of the close of pleadings,
each party must serve on all other parties a
sworn ‘affidavit of documents’ disclosing
to the full extent of that party’s
knowledge, information and belief all
documents relating to any matters in
issue in the action that are or have been
in the party’s possession, control or
power;
The Affidavit of Documents
2.
the client’s lawyer must certify on the
affidavit that she has explained to the
deponent:
a.
b.
the necessity of making a full disclosure of all
documents relating to any matter in issue in
the action, and,
what kinds of documents are likely to be
relevant to the allegations made in the
pleadings (rule 30.03(4).
The Affidavit of Documents:
Form and Content
Form:
 Form 30A provides the form of the
affidavit of documents for an individual

Form 30B provides the form of the
affidavit for a corporation or
partnership
The Affidavit of Documents:
Form and Content
Content: Rule 30.03(2): the affidavit is
broken down into three ‘schedules’:
Schedule A: lists all documents relating
to any matter in issue in the action
that are in the party’s possession,
control or power and that the party
does not object to producing.
Affidavit of Documents:
Form and Content
Schedule B: lists all documents relating
to any matter in issue in the action
that are or were in the party’s
possession, control or power and
for which the party claims
privilege, and the grounds for the
claim.
Affidavit of Documents:
Form and Content
Schedule C: lists all documents that
were formerly in the party’s
possession, control or power, but
are no longer in the party’s
possession, control or power,
together with a statement of when
and how the party lost possession,
control of or power over them and
their present location.
Affidavit of Documents:
Schedule B Claims of Privilege
Rule 30.03(2): Schedule B documents must
include the grounds for the claim of
privilege
Also, sufficient detail must be included “to
allow the court to make a prima facie
decision as to whether the claim for
privilege has been established from
what appears on the face of the
affidavit” (from Grossman v. Toronto
General Hospital - 1983 H.C.J.)
Affidavit of Documents:
Inspection of Documents
Rule 30.04 provides that the party delivering
the affidavit must produce the documents
in Schedule A for inspection by the other
parties.
available at examination for discovery;
a copy available
* producing for inspection does not equal
admission of relevance/admissibility
Incomplete Affidavit or
Improper Claim of Privilege
Rule 30.06 governs the procedure if an
affidavit is incomplete or if privilege in
Schedule B has been improperly
claimed
Incomplete Affidavit or
Improper Claim of Privilege
If satisfied of this situation, court may:
a.
b.
order cross examination on the
affidavit of documents;
order the service of a “further and
better” affidavit of documents;
Incomplete Affidavit or
Improper Claim of Privilege
c.
order the disclosure of or the production for
inspection of the ‘missing’ document(s), if it
is not privileged; or,
d.
inspect the document for the purpose of
determining its relevance or the validity of
its claim of privilege.
Documents or Errors
Subsequently Discovered
Rule 30.07 imposes a duty on any party
that has already served its affidavit of
documents to make ‘continuing
discovery’ of documents that either
subsequently come into its possession
or control AND to correct any
inaccuracies in its affidavit
Sanctions for Failure to
Disclose or Produce
Rule 30.08(1) provides sanctions for a party’s
failure to disclose or produce for inspection
in compliance with the rules
1.
if the document is favourable to the party’s
case, the party may not use the document
at trial except with leave of the trial judge;
2.
if the document is not favourable to the
party’s case, the court may make such
other order as is just.
Use of Privileged
Documents at Trial
Rule 30.09 deals with the situation where a
party has claimed privilege over a document
but wants to use that document at trial –
A party claiming privilege over a document
may NOT use that document at trial
UNLESS it gives notice (ie. abandons the
claim for privilege) within ten days of the
action being set down for trial
Use of Privileged
Documents at Trial
EXCEPTION:
A document over which privilege
continues to be claimed CAN be
used at trial to impeach the
credibility of a witness
Production from Non-Parties
Rule 30.10 allows a party to move for
production of a document from a non-party
Test for requesting production from a nonparty:
: the document must be relevant to a
‘material issue’ in the action and the court
must be satisfied that it would be unfair to
require the moving party to proceed to
trial without having discovery of this
document