SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-335466PD3
DATE: 201212119

RE: Zenex Enterprises Limited, Plaintiff

– AND –

Pioneer Balloon Canada Limited, S. Rossy Inc., Dollarama S.E.C., and Dollarama L.P., Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Michael S. Deverett, for the Plaintiff
Derek Collins, for the Defendant

HEARD: November 23, 2012

ENDORSEMENT

[ 1 ] The parties are engaged in a contractual dispute in which the Plaintiff claims a percentage of certain sales made by the one Defendant remaining in the action, Pioneer Balloon Canada Limited. The Plaintiff is not satisfied with the documentary production by the Defendant and has conducted an aggressive campaign of discovery, of which this motion is the latest and most aggressive step.

[ 2 ] First and foremost, the Plaintiff seeks an order permitting it to make a “mirror copy” of the Defendant’s entire hard drive. In order to do this the Plaintiff proposes certain key words that will be searched on the Defendant’s computer system and puts forward various assurances that no privileged or other matters on the Defendant’s system will be accessed.

[ 3 ] The Plaintiff also moves for extensive information relating to the search of documents performed by the Defendant in compiling its productions for discovery, as follows:

An order that Pioneer produce the particulars of the searches conducted by it of its digital documents, including without limitation emails, including without limitation the searches conducted by Chris Douglas that are referred to in the Examination of Discovery of MaryLynn Borondy and the recent searches conducted by Chris Douglas in August and/or September 2011 including without limitation:

(a) When the search was conducted;

(b) The step-by-step details of how the search was conducted including without limitation the methods and parameters used to conduct the search;

(c) Whether or not the search was conducted to discover all of the defendant’s documents that refer to Starr or Zenex, and if not why not;

(d) The results of the search and the production of print-screen or similar report generated by the computer without amendment confirming the results of the search;

(e) The details of all backups of digital documents that are maintained by Pioneer and whether it is possible to conduct other searches of documents using any of those backups;

(f) Emails back and forth between Chris Douglas and Derek Collins; and,

(g) Notes, memorandums and other documents made by Derek Collins with respect to his telephone conversations with Chris Douglas.

[ 4 ] The Plaintiff would also like to speak with the Defendant’s I.T. manager, Christopher Douglas, and here seeks a declaration that Mr. Douglas is not a “person with authority” to make decisions for the Defendant about the course of the litigation.

[ 5 ] In addition, the Plaintiff seeks to enforce an undertaking which it says was given by counsel for the Defendant to provide a full explanation of the searches done by Christopher Douglas of email communications stored on the Defendant’s computer system, and to forward a statement by Christopher Douglas regarding the results of these searches.

[ 6 ] Finally, the Plaintiff seeks further answers to a series of undertakings given by MaryLynn Borondy, the representative of the Defendant who was examined for discovery. These undertakings all relate to the Defendant’s internal communications with and searches conducted by Christopher Douglas during the course of this litigation.

[ 7 ] Rule 30.02 of the Rules of Civil Procedure, RRO 1990, Reg. 194 requires a party to disclose and produce for inspection “[e]very document relevant 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…” Furthermore, Rule 30.07 requires a party who, subsequent to serving an affidavit of documents, discovers that the affidavit was inaccurate or incomplete, to “serve a supplementary affidavit specifying the extent to which the affidavit of documents requires modification and disclosing any additional documents.”

[ 8 ] The first thing to note is that the Rules require a party to disclose and to produce relevant documents. They do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents. The purpose of documentary discovery is for one party to know what documents exist for potential use at trial; discovery is not, however, an end in itself. By insisting on examining the methods used by the Defendant to conduct its search for documents, the Plaintiff has lost sight of the rationale for the discovery process and is focusing on the way the Defendant is coping with the litigation rather than the merits of the action.

[ 9 ] The Defendant, through its counsel, has advised Plaintiff’s counsel that it has now produced all relevant documents in its possession. To the extent that its original productions were incomplete, it has produced all of the documents that it concedes that it subsequently located. As already indicated, its obligation is not to explain how it found the relevant documents, nor how it found the ones that were originally overlooked. Its obligation is to produce what it has found, which it apparently has done.

[ 10 ] The Plaintiff argues that since the Defendant has advised that it has now found certain documents not contained in its first affidavit of documents, there must be even more undisclosed documents lurking in its computer. With respect, the disclosure by the Defendant of what it is obliged to disclose under Rule 30.07 cannot be seen as evidence that the Defendant has withheld other documents.

[ 11 ] Quite the contrary, the Defendant appears to have made appropriate efforts to meet its disclosure requirements. Plaintiff’s counsel submits that computers do not err, and the fact that a document was overlooked the first time implies that the search was unredeemably deficient. However, computer storage and search systems, like traditional filing systems, are subject to human error. The Defendant’s obligation is to make every effort to produce what the Rules require it to produce, but there must be evidence stronger than a corrected error for a court to order that the Plaintiff actually take control of the search through the Defendant’s computer hard drive.

[ 12 ] The underlying claim is based on an agreement that the Plaintiff alleges was reached in an exchange of correspondence, or a series of communications, between the parties. The Plaintiff, of course, will have copies of the correspondence that was sent back and forth to its own personnel. To the extent that the Defendant has not produced its side of some of that correspondence, it has explained the reason that some emails may have been deleted prior to litigation arising.

[ 13 ] What the Plaintiff must therefore be seeking in its quest to search through the Defendant’s computer system is internal email enabling the Plaintiff to make its case, but of which it has no actual knowledge. This, however, is the kind of trolling through unknown waters that goes beyond rightful discovery. Marrello Valve Ltd. v. Orbit Valve Canada Ltd., [1988] OJ No. 2710, at para. 22 (SCJ). I agree that the obligation to produce all relevant documents includes electronically stored data, Nicolardi v. Daley, [2002] OJ No. 595, but I also am cognizant of the fact that “[a] motion under Rule 30.06 requires evidence, as opposed to mere speculation, that potentially relevant undisclosed documents exist.” Frangione v. Vandongen, 2010 ONSC 2823, at para. 14.

[ 14 ] As stated in Warman v. National Post Co., 2010 ONSC 3670, at para. 93, “it is not sufficient for a moving party to say ‘I believe there are more documents’ or ‘it appears to me that documents are being hidden.’” The Plaintiff cannot be permitted to take over the Defendant’s search of its own computer system, and to make a “mirror copy” of the Defendant’s hard drive, on mere speculation that there might be more than has been produced to date.

[ 15 ] Separate from the obligation to produce all relevant documents, it is also incumbent on a party to fulfill undertakings given during the course of the discovery process. This is especially true where the undertaking is given by a lawyer for the party, as a solicitor’s undertaking is an important and solemn matter that courts are bound to enforce.

[ 16 ] The Plaintiff claims that it was provided with undertakings to produce to it the very information regarding computer searches that the Plaintiff would not otherwise be entitled to obtain. It is possible, of course, that a party and/or its counsel might be foolish enough to undertake to produce information or documents that it was not obliged under the Rules to produce.

[ 17 ] That does not appear to me to be the case here. The specific undertakings given on the Defendant’s behalf by MaryLynn Borondy were addressed by Defendant’s counsel in correspondence to Plaintiff’s counsel dated September 11, 2009. In this letter, the undertakings were either fulfilled by advising Plaintiff’s counsel that there are no further relevant emails on the Defendant’s computer, or were answered by passing on a note from Christopher Douglas explaining that the Defendant is a privately held corporation and as such is not under the same obligations as a public company might be to retain email correspondence in its computer system unless it is engaged in litigation.

[ 18 ] The latter response, I would point out, is an answer to an undertaking that probably did not need to be given; as noted above, a party is not generally under an obligation to explain why it does not have a certain document except to disclose that it does not have a document that it may once have had. In any case, the undertaking given by Ms. Borondy is fulfilled by the answer, even if the Plaintiff is not satisfied with the information.

[ 19 ] The Plaintiff also seeks an answer to a solicitor’s undertaking given by Defendant’s counsel, Mr. Collins, on July 5, 2011. That undertaking took the following form:

…I will undertake to speak with Mr. Douglas and provide you with a statement that specifically addresses the issue as to whether any other emails exist which are relevant to any of the issues raised in this litigation.

[ 20 ] Mr. Collins did not, as the Plaintiff contends, undertake to provide a written statement from Mr. Douglas. Reading his correspondence carefully, it appears to me that he undertook to seek information from Mr. Douglas about whether there are any other relevant emails and to provide an answer to Plaintiff’s counsel, Mr. Deverett.

[ 21 ] Mr. Collins apparently did communicate with Mr. Douglas in early September 2011. Mr. Collins spoke with Mr. Deverett on September 6 th and told him as much. At the time, he indicated that he was still trying to follow up with Mr. Douglas to clarify the time line contained in his explanation about his search for further emails.

[ 22 ] Mr. Deverett followed up the September 6 th conversation with a letter to Mr. Douglas. In that letter, he states: “You have undertaken to obtain and produce Mr. Douglas’ statement including without limitation when and how he conducted his search of all of the defendant’s emails that refer to Starr or Zenex, what methods and parameters he used, what results he obtained, and how he explains that not all of the emails were produced previously.”

[ 23 ] Mr. Collins denies that he made such an undertaking in the September 6 th phone call. Indeed, it would be very surprising had he given such an undertaking, as there was no legal obligation to do so and the information recited by Mr. Deverett is exceedingly far-reaching. I am loathe to impugn a solicitor with such a sweeping and unnecessary undertaking when there is no evidence other than a unilateral letter from opposing counsel supposedly confirming it. A solicitor’s undertaking should be in the solicitor’s own words, and not be found only in a follow-up letter from the person trying to enforce the undertaking.

[ 24 ] I do not fault Mr. Deverett for writing back to Mr. Collins after a phone call. For his part, Mr. Collins should have responded to Mr. Deverett’s letter and clarified that he did not make the alleged undertaking. Nevertheless, I cannot take what could be seen as a self-serving letter by Plaintiff’s counsel as reflecting an undertaking by Defendant’s counsel that would dramatically change the contours of the litigation by focusing it on process rather than substance.

[ 25 ] Fulfilling the undertaking that Mr. Collins is alleged to have given on September 6 th would allow the Plaintiff to inspect the inner workings of the Defendant in searching its computer system. That would be highly invasive, and would be well beyond what the Rules call for. Indeed, it would intrude on the Defendant’s conduct of the litigation, and would transform the mutual obligation of disclosure to a situation wherein the Plaintiff was supervising the Defendant’s disclosure. While there might be times where such an intrusion is warranted, it cannot be inferred from a solicitor’s silence that he undertook to let the other side into his client’s business in this way.

[ 26 ] As for the Plaintiff’s desire to speak with Christopher Douglas, that strikes me as inappropriate under the circumstances. While Ms. Borondy may not have included Mr. Douglas when she was asked at discoveries to list her superiors at work, that does not mean that Mr. Douglas is not someone that the Defendant has entrusted with authority to instruct counsel and take advice on the Defendant’s behalf in the context of the present litigation. Corporate parties will often have a team of people in that position, and here Mr. Douglas is a member of that team.

[ 27 ] Rule 6.03(9) of the Rules of Professional Conduct prohibits counsel from contacting those individuals actively involved in the conduct of the litigation for the opposing side. Mr. Douglas is obviously involved in the decision-making process for the Defendant in steering various issues in the litigation, and he has the authority to deal directly with Defendant’s counsel in this respect. The fact that he is a key decision-maker in the discovery process and a conduit to Defendant’s counsel is no doubt what makes him such an attractive person for the Plaintiff to speak with. Under the circumstances, Plaintiff’s counsel must not be in contact with Christopher Douglas except through Defendant’s counsel.

[ 28 ] The motion is dismissed. Counsel have agreed that costs should be in the cause, which I consider to be an appropriate order here .

Morgan J.

Date: December 19, 2012