The defendant insurer brought a motion to compel the plaintiff to serve a further affidavit of documents and produce 15 categories of records taken under advisement at discovery.
The plaintiff did not dispute the records were deemed refusals or oppose production, but argued they were in third-party possession and the defendant should pay costs to obtain or copy them.
The court found the records were not in the plaintiff's possession, control, or power, and that an agreement existed between counsel for the plaintiff to bear the cost to obtain records and the defendant to pay reasonable photocopying costs.
The motion to compel a further affidavit of documents was dismissed.
The plaintiff was directed to obtain the records at her own cost, and the defendant was ordered to pay reasonable duplication costs upon receipt.
The plaintiff was awarded costs of $5,000.
