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Document Disclosure Now More Limited Without Evidence

Document disclosure

Document Disclosure

 

The rules and case law relating to the production of discovery documents has been limited under revisions to the Rules as discussed in the following decision of Justice Nathan Smith in Dhugha v Ukardi     201 BCSC 387.

 

The issue arose during a Case Management Hearing and the Justice firstly reviews the authority of a Judge at such a hearing to order the production of further documents and then proceeds to review the limitations under the new rules that “any and all ” documents do not have to be produced and that some evidence may be necessary to persuade the Chambers Judge that an order should be made to compel production of further documents.

 

The decision in its entirety is as follows :

 

 

[1]             Counsel for the defendant sought orders at a case planning conference (“CPC”) for disclosure of expert evidence and production of a number of documents. Because there appears to be some uncertainty about what orders can or should be made at CPCs, I took the unusual step reserving judgment.

[2]             This action concerns a motor vehicle accident that occurred on April 14, 2011. The notice of civil claim was filed on April 3, 2013. An examination for discovery of the plaintiff is scheduled for August 19, 2014, and the trial is set for June 2, 2015. Although the response to civil claim denies liability, I understand from counsel that that liability has been or will be admitted and the only matters in dispute relate to damages.

Expert Evidence

[3]             At a CPC held more than 15 months before trial, the defendant sought an order that the plaintiff immediately disclose the areas of expertise of any experts whose evidence will be tendered at trial and an order limiting the expert evidence at trial to those areas of expertise. Counsel for the plaintiff says he has informally advised counsel for the defendant what areas of expertise will likely be involved, but opposes any formal limitation being imposed at this early stage.

[4]             Normally, a party is not required to disclose anything about his or her expert evidence until 84 days before trial, when Rule 11-6(3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, requires expert reports to be served. However, the defendant says the order now sought is contemplated by Rule 11-1(2). The full text of Rule 11-1 reads:

(1) This Part does not apply to

(a) summary trials under Rule 9-7, except as provided in that rule, or

(b) a witness giving evidence in an action in relation to a matter if that witness is an individual whose conduct is in issue in the action in relation to that matter.

(2) Unless the court otherwise orders, if a case planning conference has been held in an action, expert opinion evidence must not be tendered to the court at trial unless provided for in the case plan order applicable to the action.

[5]             The orders that may be made at a CPC are set out in Rule 5-3(1). The relevant ones for the purpose of these reasons are Rule 5-3(1)(k) and (v):

(1) At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party:

(k) respecting experts, including, without limitation, orders

(i) that the expert evidence on any one or more issues be given by one jointly-instructed expert,

(ii) respecting the number of experts a party may call,

(iii) that the parties’ experts must confer before the service of their respective reports,

(iv) setting a date by which an expert’s report must be served on the other parties of record, and

(v) respecting the issues on which an expert may be called;

(v) any orders the judge or master considers will further the object of these Supreme Court Civil Rules.

[6]             The defendant relies on Lennox v. Karim, 2012 BCSC 930. In that case, a CPC was held about 16 months before trial and more than seven years after the accident at issue. The plaintiff’s case plan submitted at the CPC referred to two treating doctors from whom reports had been obtained. At or near the deadline for serving reports under Rule 11-6(3), the plaintiff served a report from another doctor, identifying an injury that had not previously been in issue. In a ruling at trial, Armstrong J. said at para. 28:

Rule 11-1(2) is a bar to tendering Dr. Stewart’s report without further order of the court. The plaintiff has not asked for such an order.

[7]             Armstrong J. was not asked to and did not exclude the new medical evidence on the basis of Rule 11-1(2). The issue was whether a defence expert’s response to that evidence was a proper responsive report under Rule 11-6(4), which permits service of such reports 42 days before trial. It is not clear to what extent the meaning or application of Rule 11-1(2) was argued and Armstrong J.’s comment must, with respect, be regarded as obiter.

[8]             A contrary authority is Galvon v. Hopkins, 2011 BCSC 1835. There, a master presiding at a CPC made an order that the plaintiff notify counsel for the defendant of the name of a specialist with whom an appointment had been made and provide notice of any further appointments with medical experts, including the name and expertise of the expert.

[9]             Kloegman J. set aside that order on appeal because it infringed on litigation privilege and on the plaintiff’s right to decide what witnesses to call or not call at trial At paras. 18, 21 and 24, she said:

I do not see anything in Rule 5‑3 governing case planning conferences that clearly, expressly, and specifically allows the presider to compel a party to provide another party with the details of any potential expert witnesses before that party has even consulted with the expert or made an election whether to call the witnesses’ evidence at trial.

I agree with counsel for the plaintiff’s submission that Rule 5‑3 cannot be read as to allow the case planning conference judge or master to disregard the common‑law principle of privilege.

By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, nor warranted, I might add, by our Supreme Court Rules.

[10]         Galvon was followed in Amezcua v. Norlander, 2012 BCSC 719, where the defendants sought an order at a CPC that the plaintiff “confirm which experts and expert reports it plans to rely on at trial.” Master Baker declined to make that order, saying at paras. 7-8:

Rule 5-3 does have clear and express provisions respecting experts: Rule 5-3(1)(k) permits the Court to direct the appointment of joint experts, to order that they consult, to limit the number of experts, to set dates for service of experts’ report (i.e. other than those set by Rules 11-6(3) and (4)), or to direct what issues upon which they may be called. But none of these (other than by advancing the service date for reports) requires that a party disclose either the expert’s identity or the area of his or her expertise before serving the report.

Rule 5-3(1)(k) is not inconsistent, in my view, with the reasoning in Galvon. The disclosure aspects of that Rule assume that evidence has been gathered, assessed, and considered essential to a party’s case. The only question remaining then is when it will be disclosed, thus Rule 5-3(1)(k)(iv), permitting service dates other than those provided by Rule 11-6.

[Original emphasis]

[11]         Although he did not make the order sought by the defendants, Master Baker noted the long time that had elapsed since the accident at issue and ordered the plaintiff to deliver expert reports by a date that was six months after the CPC and eight months before trial.

[12]         The order sought by the defendant in this case is not as sweeping as the orders sought in either Galvon or Amezcua. It seeks only the experts’ areas of expertise, not their names or the substance of their opinions. But in my view the same considerations apply.

[13]         There has not yet been an examination for discovery of the plaintiff and counsel are still in the process of gathering and exchanging documents such as clinical records. The need for any particular expert evidence at trial may depend on further evidence that emerges or on changes in the plaintiff’s condition. It would be impractical and unfair to restrict a party’s ability to prepare and present his case at this early stage.

[14]         Counsel may also be required to make further inquiries to determine what experts are available and what they are likely to say. The results of those inquiries will be privileged unless and until a report is served.

[15]         Rule 11-1(2) is part of a general introduction to the rules on expert evidence. More specific rules governing the content and service of expert reports and the presentation of expert evidence at trial follow in Rules 11-2, 11-6 and 11-7. While Rule 11-1(2) refers generally to “expert opinion evidence,” the other rules refer to “an expert” or “an expert’s report.”

[16]         As pointed out in Amezcua, Rule 5-3(1)(k) sets out a number of specific orders that may be made in regard to experts, but those do not include an order disclosing an expert’s identity or the area of his or her expertise before the report is served, much less an order barring any additional experts or areas of expertise. If Rule 11-1(2) was intended to refer to such an order, I would have expected to see a corresponding provision in Rule 5-3(1)(k).

[17]         I recognize that the list of specific orders in Rule 5-3(1)(k) is stated not to limit the orders that may be made and that Rule 5-3(1)(v) allows for any other orders the judge or master considers will further the object of the rules. However, as was said in Galvon, such general provisions are not sufficient to override basic and clearly established common law rights.

[18]         It is also important to read all of the rules governing experts together, including the time for service of expert reports in Rule 11-6(3). That rule recognizes that parties need to know the other side’s expert evidence well before trial in order to know the case they have to meet.

[19]         Although parties may naturally want to see that evidence as early as possible, the rule presumes that 84 days will be adequate notice in most cases. Rule 5-3(1)(k) recognizes that special circumstances in a particular case may require earlier notice, but the need for such an order must arise from those case-specific facts or circumstances. The fact that the court may order earlier service of expert reports does not mean that it will do so lightly or routinely.

[20]         In my view, Rule 11-1(2) does not relate to orders about specific experts but to orders about expert evidence generally. It is intended to address the question of whether and to what extent a particular case requires any expert evidence at all. That is not an issue in personal injury cases such as this, where expert medical evidence is always necessary to prove the plaintiff’s injuries and assess damages. The case plan order may, and usually does, say no more than that expert reports are to be exchanged in accordance with Rule 11-6(3) and (4).

[21]         But in other cases, a judge or master at a CPC may conclude, for example, that there are no issues, or only limited issues, on which expert evidence will be required or that the issues can properly be addressed by a jointly appointed expert or a limited number of experts. Orders can then be made under Rule 5-3(1)(k) and it is those orders to which Rule 11-1(2) applies.

[22]         Rule 11-1(2) cannot be used at a CPC to force a party to identify specific medical experts or areas of medical expertise or to limit the party’s case at trial to those experts.

Documents

[23]         The defendant’s case plan proposal includes a long list of documents that have been requested and the defendant seeks an order that all of that material be produced within 21 days. These include clinical records from various doctors and other health care professionals, complete employment records and income tax returns.

[24]         The court’s jurisdiction to make orders at a CPC relating to documents is set out in Rule 5-3 (1)(f):

(1) At a case planning conference, the case planning conference judge or master may make one or more of the following orders in respect of the action, whether or not on the application of a party:

(f) respecting discovery, listing, production, preservation, exchange or examination of documents or exhibits, including, without limitation, orders

(i) respecting electronically stored information, and

(ii) that discovery, listing, production, exchange or examination be limited or otherwise conducted as ordered;

[25]         In this case, counsel for the plaintiff advises that most of the documents on the list have already been provided. In other cases, requests have been made to third parties, such as the plaintiff’s employer, who have not yet provided the documents. There is a potential relevance issue on one of the requests. Counsel for the plaintiff says he has provided copies income tax assessment and re-assessment notices and is considering whether production of full tax returns is necessary.

[26]         The purpose of Rule 5-3(1)(f) is to identify and resolve issues that have arisen in the document disclosure process. I see no need for a blanket order when the process is well underway and there appears to be full co-operation of counsel. That is particularly so when the proposed order would include documents already produced and would impose a deadline for production of other documents that are under the control of third parties who have not been given notice of the application. The defendant has not shown a need for the order sought.

[27]         As a matter of general practice, it is not particularly helpful for parties at a CPC to produce a long list of documents or categories of documents and simply seek an order that they be produced. The CPC process does not operate independently of the general rules for discovery of documents in Rule 7-1. That rule requires parties to prepare a list of documents in their possession or control that could be used to prove or disprove a material fact along with any other documents that will be relied on at trial.

[28]         That initial disclosure requirement is much narrower than what existed under the former Rules of Court. Parties are no longer automatically entitled to disclosure of any and all documents. A party receiving a list of documents he or she believes to be inadequate must make the demand required by Rules 7-1(10) or (11), requiring the other party to respond under Rule 7-1(12). Those rules read:

(10) If a party who has received a list of documents believes that the list omits documents or a class of documents that should have been disclosed under subrule (1) (a) or (9), the party may, by written demand, require the party who prepared the list to

(a) amend the list of documents,

(b) serve on the demanding party the amended list of documents, and

(c) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16).

(11) If a party who has received a list of documents believes that the list should include documents or classes of documents that

(a) are within the listing party’s possession, power or control,

(b) relate to any or all matters in question in the action, and

(c) are additional to the documents or classes of documents required under subrule (1) (a) or (9),

the party, by written demand that identifies the additional documents or classes of documents with reasonable specificity and that indicates the reason why such additional documents or classes of documents should be disclosed, may require the listing party to

(d) amend the list of documents,

(e) serve on the demanding party the amended list of documents, and

(f) make the originals of the newly listed documents available for inspection and copying in accordance with subrules (15) and (16).

(12) A party who receives a demand under subrule (10) or (11) must, within 35 days after receipt, do one of the following:

(a) comply with the demand in relation to the demanded documents;

(b) comply with the demand in relation to those of the demanded documents that the party is prepared to list and indicate, in relation to the balance of the demanded documents,

(i) why an amended list of documents that includes those documents is not being prepared and served, and

(ii) why those documents are not being made available;

(c) indicate, in relation to the demanded documents,

(i) why an amended list of documents that includes those documents is not being prepared and served, and

(ii) why those documents are not being made available.

[29]         The rules governing, and in many cases restricting, document disclosure are intended to be one way in which the general goal of proportionality, set out in Rule 1-3(2), is to be pursued. That is particularly so in cases such as this, which is a fast track action under Rule 15-1. That rule is intended to provide a simplified procedure that lowers the cost of litigating relatively modest claims.

[30]         A party seeking additional document disclosure must therefore provide some indication of why he or she believes the additional documents to be relevant and producible, allowing the other party to specifically agree or disagree. Disputes over particular documents can then be resolved by an order at a CPC. The demands and responses do not need to be in the form of extensive submissions, but they should

provide the judge or master with some basis on which to consider the relevance of the documents in the context of the issues raised in that case.

“N. Smith, J.”

 

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