Court File and Parties

CITATION: Winn v.Winn, 2016 ONSC 1096

COURT FILE NO.: FS-13-388317

DATE: 20160211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Julia Winn, Applicant

AND:

Conrad Winn, Respondent

BEFORE: F.L. Myers J.

COUNSEL: Nancy Iadeluca, for the applicant

D. Gelgoot, for the respondent

HEARD: February 9, 2016

ENDORSEMENT

The Motion

[1] The applicant moves to enforce prior disclosure orders made by the court, to fix days for questioning of the respondent, and to direct the terms on which their respective IT consultants will speak.

[2] The respondent asked for an adjournment of the motion because his principal counsel are not available due to trial commitments. He also claims that he was prejudiced in his inability to respond by the late service of motion material by the applicant.

[3] For the reasons that follow, the request for an adjournment is denied and the motion is granted on the terms set out below.

The Parties

[4] The parties were married for 45 years before separating in 2011. In addition to being a tenured professor at Carleton University, the respondent operates a research company called Compas Inc. Compas is owned by the husband and the wife, 55:45, through a holding company. At the material times, both parties were officers and directors of the parent company and its operating subsidiary.

[5] Compas paid the applicant salary of $60,000 in 2013 until she was terminated by the respondent. The applicant alleges that the respondent installed his new spouse as Chief Operating Officer of Compas. Since the date of separation, his income from Compas has consistently declined while hers has increased. The applicant alleges further that the respondent and his spouse have now disclosed financial information showing that the respondent’s spouse operates her own company that invoices both Compas and some of its customers. The allegation is that the respondent is wrongfully diverting revenue away from himself and Compas to his new spouse in breach of family law and corporate law duties. The Respondent says that Compas is earning less income now due to brain damage that he suffered in a bicycle accident. In addition, he says that his spouse is integral to generating Compas’s revenue.

[6] None of this is before me today. These facts or allegations have been developed by the parties and have been heard by other judges previously. Those judges have made orders. What is before me today is whether the respondent ought to be ordered to comply with some of those orders or whether the motion should be deferred for two weeks so he can try to file evidence and have his principal counsel present.

The Relevant Outstanding Orders

[7] By consent order made by Mesbur J. dated February 13, 2014, the court granted the parties leave to conduct questioning.

[8] By order made by Stevenson J. dated January 8, 2015, the court ordered the respondent to provide immediate access to the applicant to Compas’s computer server and all of Compas’s electronic media.

[9] Justice Stevenson referred expressly in para. 47 of her Endorsement to the intention of the applicant to make a mirror copy of the server in order to, among other things, access the system data and metadata that can show things like: which users logged into the system, what files they accessed, and what activities they performed. This could show, for example, whether it was the respondent or his spouse who was doing work. It could show whether files were deleted or transferred elsewhere.

[10] Among the items listed as required disclosure in Justice Stevenson’s order was “[c]onfirmation that Mr. Winn has preserved all electronic media/data pursuant to [Ms.] Iadeluca’s letter dated June 12, 2014.” By letter dated July 10, 2015, Mr. Winn’s counsel, Ms. Van Wirdum, advised that despite the preservation letter sent by Ms. Iadeluca one year earlier, the “old, malfunctioning server was disposed of.” Instead, the information on the server was apparently transferred to a cloud-based storage facility.

[11] Initially, the Respondent and his IT consultant advised the court that all of the information on the old server had been transferred to the new storage medium. However, the applicant was concerned that despite the transfer of active working files to a new storage medium, not all system data, including metadata, log files, and the like, may have been preserved. The respondent initially declined to provide the name of his cloud service provider. He also required that the applicant’s IT expert attend at Compas’s offices in Hamilton to extract data instead of allowing the expert to do it remotely from his own office to save time and money.

[12] On September 17, 2015 the respondent moved before Kelly J. to require the applicant to attend for questioning. The applicant responded with a motion for production and disclosure concerning the respondent’s electronic data. Justice Kelly recited the history of the positions taken by the parties at some length. She found that when they were before Stevenson J. the parties were operating under the belief that the Compas server was still in existence. However, despite Justice Stevenson ordering that the applicant could make a mirror copy of respondent’s server, there was no server then in existence. Justice Kelly held that although the medium for the storage of data had changed from a physical server in Compas’s office to the cloud (i.e. a server located elsewhere):

[T]he husband is not entitled to hide behind the wording of the order that does not properly reflect the circumstances, as they existed at the time the order was made, and unbeknownst to the wife, her Counsel and Stevenson J.

[13] Therefore, Kelly J ordered that “[i]n accordance with the spirit of Stevenson J.’s order,” the applicants IT expert was to be given access on Wednesday, September 23, 2015 at 5 p.m. to a read-only version of the information that he requested on behalf of the applicant. She also ordered that, “[a]gain, in an effort to keep this matter moving” a Trial Management Conference be held before November 30, 2015 if time is available.

[14] The respondent then again took the position that the applicant’s IT expert had to attend Compas’s premises in Hamilton in order to obtain access to the data as ordered. He also took the position that despite Justice Kelly expressly following not just the letter but the spirit of the order made by Stevenson J, the wording of the order made by Kelly J. had the effect of limiting the applicant’s entitlement to disclosure by excluding all text messages and emails. As a result of these positions, the parties re-attended before Kelly J. on October 16, 2015. At that time, Kelly J. ordered that the applicant’s IT expert was to be permitted to access the respondent’s system remotely. In addition, she confirmed that the applicant remained entitled to production of text messages and emails. In order to protect lawyer client privilege, Kelly J. ordered that counsel for the respondent obtain the text messages and emails and she made the additional point that:

The purpose of this production is to produce evidence, if it exists, regarding business conducted by Compas during the relevant time.

[15] By endorsement dated December 4, 2015, Kelly J. ordered that the costs of the October 16, 2015 attendance be paid by the respondent to the applicant. In doing so she held:

The information ordered produced by Stevenson J. and myself should have been disclosed without the necessity of a court order and should not have required three attendances before the court to ensure that such disclosure obligations are complied with.

[16] The fundamental importance of disclosure in family law proceedings is not a matter that requires complicated argument. The issues in this case are not unusual or difficult. Spouses own a business and one spouse is claiming that the other has diverted revenue away from the business in order to deprive the former and enrich the latter. This is standard fare in family proceedings. Evidence one way or the other can only come from one place – those who remain involved with the business. The parties’ obligations to produce relevant documents that may provide probative evidence on the principal issues in a case is a fundamental theme running through the Family Law Rules and the supporting case law. I completely agree with Kelly J. that court attendances should not have been required to ensure or enforce the respondent’s disclosure obligations relating to Compas’s business.

[17] Once access was obtained to the respondent’s cloud-based storage medium, the applicant discovered that it did not contain the respondent’s QuickBooks accounting records or the Compas server’s log files. The respondent advised that his QuickBooks accounting records have always been maintained at his accountant’s premises and were available. However, several disclosure issues remained outstanding.

[18] On December 2, 2015 the parties attended a Settlement Conference before Horkins J. Justice Horkins noted that disclosure remained in issue. She held that she could not assess compliance with disclosure obligations at a conference. She therefore ordered that the parties make best efforts to comply with all court ordered disclosure by January 22, 2016. Any new requests were to be made before that date so as to allow for best efforts compliance by then. Justice Horkins scheduled a motion returnable February 9, 2016 to deal with any outstanding disclosure issues remaining as of January, 22, 2016.

[19] Justice Horkins also noted that, “[b]oth parties want closure to this litigation.” She said that the respondent’s counsel was anxious to set a trial date but that disclosure issues must be resolved first. She therefore set a “final Settlement Conference/Trial Management Conference” for March 30, 2016 at 10:00 a.m. She required that in addition to regular case conference briefs, the parties were to file formal offers to settle, net financial property statements, and trial scheduling endorsement forms for that combined conference.

[20] Just as Kelly J. noted her desire to move the matter forward toward trial, Horkins J. emphasized the importance of resolving the outstanding disclosure issues so as to bring the matter to trial.

The Compas Server Re-appears

[21] Apparently, before Horkins J. the respondent suggested that despite his prior advice to the contrary, Compas’s original server may not have been destroyed. Rather, it may have been “recycled.” That is, the hard drives may have been removed from the server and retained. By letter dated December 8, 2015, counsel for the applicant requested access to the hard drives. By letter dated January 22, 2016, Ms. Van Wirdum advised that the Compas server was indeed recycled. She repeated her client’s invitation to the applicant’s expert to “review the hard drives.”

[22] The applicant’s counsel asked the respondent to deliver up the hard drives so that they could be cloned by the applicant’s expert.

[23] At the hearing of the motion, I was not ready to decide the adjournment issue so I determined to reserve on it and hear the parties on the merits to ensure that I understood the substance of the issues at play. As I heard other matters before I was able to commence hearing this motion, the lunch hour intervened. When the lunch hour arrived, I required the respondent to have the resurgent Compas hard drive brought to the court house for the afternoon session.

[24] Upon re-commencing after lunch, Mr. Gelgoot advised that the hard drive seems to have disappeared again. The respondent brought to court what he described as an external hard drive that housed the data from the original hard drive. He advised that despite the advice that the original Compas hard drive had been recycled and saved, it was gone. The external hard drive is another separate storage device. What is not yet known is whether the external hard drive that the respondent brought to court is a mirrored/cloned copy of the original hard drive that contains its system data, metadata, log files, and the like, or whether it is just another copy of the files transferred to the cloud storage medium.

[25] I instructed counsel to work out the wording of an undertaking for Ms. Iadeluca and her IT expert to sign so as to allow her to take the external hard drive away and have it cloned by her expert. They quickly agreed on wording and I have included the original undertaking given by Ms. Iadeluca with the original Endorsement in the court file in the Endorsement’s brief. As Justices Stevenson and Kelly had already determined that the applicant was entitled to access the hard drive and all electronic data remotely and Ms. Van Wirdum had recently repeated the offer to review the hard drive, I did not see myself making a decision in this matter. I just facilitated the exchange to which they parties had already been ordered and agreed to conduct.

The Request to Question the Respondent

[26] By email dated December 9, 2015, the applicant’s counsel requested that the respondent’s counsel provide two convenient dates for questioning of the respondent. Ms. Iadeluca provided three suggested dates on which she was available. The respondent’s counsel declined to do agree to dates on the basis that they had only examined the applicant for one-half day and that Ms. Iadeluca had never previously said that she wished to examine the respondent for two days. Further correspondence ensued. On the day before the motion was heard, counsel for the applicant requested that counsel for the respondent come to court with a list of available dates – one in each of February and March. At the hearing, Mr. Gelgoot advised that his client and counsel were available for questioning on a specified date in February. He had no second date in March as requested by the applicant’s counsel.

Outstanding Disclosure Requests

[27] In a series of correspondence dated January 22, 2016, the respondent answered the vast bulk of outstanding disclosure requests. He provided copies of literally tens of thousands of emails, for example. The applicant says that there are none before 2013 although the respondent has been ordered to produce electronic data back to 2008. However, one of the letters from the respondent’s counsel dated January 22, 2016 says that is encloses a pink flash drive containing the respondent’s business emails from 2008.

[28] Rule 13(11) authorizes a party to request information concerning matters raised in the other side’s sworn financial statements. The respondent provided an affidavit sworn January 22, 2016 responding to number of requests made by the applicant for back-up documents concerning specific entries in the respondent’s sworn financial statement. Paragraph 1 of the respondent’s affidavit contains his refusal to answer requests 1-4 and 6-8 of the applicant’s request because they are “irrelevant” and “unreasonable.” It was therefore apparent on January 22, 2016 from the respondent’s own affidavit that there were outstanding disclosure issues to be resolved at the motion scheduled for February 9, 2016 by Horkins J.

Discussions among IT Professionals

[29] The applicant has been seeking access to Compas’s IT consultant to understand better what has been done to Compas’s computers and their contents. The respondent agreed to make its IT consultant available to the applicant’s IT expert provided that proposed questions were provided in writing in advance and that counsel and clients are on the call. The applicant’s counsel asked the respondent’s counsel to confirm that her expert would not be limited to ask only the written questions and would be entitled to ask reasonable follow-up questions. Ms. Van Wirdum responded:

I cannot answer for [the IT consultants] as to what questions they will be answering or not. Provide the questions in writing and we will have the call. Let’s get on with it.

The Motion

[30] According to the affidavit of service filed, the applicant served her motion materials on the respondent’s lawyers on Wednesday, February 3, 2016. This was the minimum notice allowed by the Family Law Rules. The motion material includes a new affidavit of the applicant that the respondent characterizes as voluminous. He says that he has been denied the opportunity to respond by the late service. Moreover, his lead counsel are not available as they both have been called into a trial that was adjourned into this week. Mr. Gelgoot appeared at the motion for the respondent. He is a senior partner at the respondent’s lawyers’ firm. However he is not one of the lawyers with carriage of this matter for the respondent.

[31] Mr. Gelgoot sought an adjournment because his client wants to submit evidence in response to the motion and it would be unfair to his client were the motion to be heard without hearing the respondent’s evidence. While the applicant’s affidavit is not short in length, it is short on new facts. It is a comprehensive recitation of the judicial history of the disclosure issue in particular. It recites the judicial decisions quoted above and it appends correspondence between and among counsel on the issues. If anything, Ms. Iadeluca has perhaps been over-inclusive in the exhibits she included so that the bulk of the correspondence between counsel is before the court already. That is, to the extent that the materials contain allegations made by the applicant through her counsel’s correspondence, the responding letters and emails from the respondent’s counsel are also disclosed.

[32] Mr. Winn was present at the hearing. Therefore, if there were matters to which he wished to respond in addition to what his counsel had already said in contemporaneous correspondence, I invited Mr. Winn to give evidence orally at the motion hearing.

[33] Mr. Gelgoot consulted with Mr. Winn and advised that his client did not agree to provide evidence during the hearing. He said that Mr. Winn is under doctor’s care as a result of his brain injury that gives him problems with his memory. Mr. Winn did not feel that he could give evidence in court as a result of his memory issues. But, in any event, Mr. Gelgoot also expressed Mr. Winn’s desire to be represented by counsel of his choice rather than by him.

Adjournments

[34] The court has discretion of course to grant an adjournment to protect the fairness of a hearing. Moreover, it will often do so even when fairness is not threatened but where a party just has a decent reason for wanting an adjournment. Under the Advocates’ Society’s Principles of Civility for Advocates, for example, counsel are positively expected and required to consent to requests for professional courtesy. An adjournment because counsel opposite is busy in another court would amount to such a request. The Principles of Civility state:

3. Advocates should extend professional courtesies to opposing counsel. Such courtesies include extending assistance, to which opposing counsel are not entitled by law, that does not prejudice their own client.

[35] As can be seen however, there is an exception built into the principle. One is not required to consent to an adjournment requested by the party opposite where doing so will prejudice one’s own client. While this principle of advocacy is not binding on the court, it is not an accident that it includes the concept of prejudice which does lie at the heart of most discretionary decisions in matters of procedure.

[36] The applicant argues that she will indeed suffer prejudice if an adjournment is granted even for two weeks and that the prejudice cannot be compensated in costs. Two judges have already noted the need to move this matter to trial. Justice Horkins created a time limited process to finalize the procedural preconditions to holding the trial. Moreover, she scheduled a combined Settlement Conference/Trial Management Conference for March 30, 2016. She required the parties to have formal offers to settle and trial requirements memoranda ready to by then. To avoid prejudice by an adjournment, the applicant’s counsel argues, the combined Settlement Conference/Trial Management Conference date will have to be vacated because she needs final disclosure from the hard drives to conduct her questioning and she needs a resolution on whether she is entitled to two days for questioning as well. There is no way to be ready with a final offer to settle for trial and the other material required without documentary and oral discovery being completed. Moreover, she asks for assurances that the respondent will not come back with a cross-motion of his own in two weeks although he did not deliver a motion returnable on the motion date set by Horkins J. Furthermore, she notes that the respondent gives no commitment not to ask for a long motion date at a return of the motion in two weeks. This could lead to a further adjournment of several weeks or months.

[37] I recited above Justice Horkins’ acceptance of the need for finality. It was the respondent who said he was anxious to get to trial before Horkins J. Mr. Gelgoot submitted before me that there would be “severe prejudice to the respondent” if there were to be a delay in the combined conferences scheduled for March 30, 2016. I agree. I am in no position to find that one side or the other has been delaying. What is clear is that this case has been typified by tactics, delays, and costs so that two judges before me have agreed that this case must get resolved. Moving the combined conferences and launching the parties into another round of cross-motions, long motions, perhaps cross-examinations on affidavits, is indeed prejudice that cannot be compensated in costs. If one party is stalling or trying to spend the other into collapse, exacerbating those tactics would not be compensable. Many judges have written about the scourge of delay in civil proceedings. The distress caused by delay and the failure of justice that it threatens is well understood and has been discussed by no less authority than the Supreme Court of Canada. This case requires resolution not more delay.

[38] Were I concerned that there might actually be unfairness to the respondent I would perhaps be more reluctant to deny an adjournment. However, I am completely satisfied that there is no unfairness to the respondent in holding him to the time limits under the Family Law Rules in this motion. I say this for the following reasons:

a. This motion was scheduled by Horkins J. on December 2, 2015. The respondent has had over two months to prepare for it. There are no surprises in the applicant’s material;

b. In his affidavit sworn January 22, 2016, the respondent himself took issue with disclosure of several items requested to support entries in his sworn financial statement. He knew or ought to have known that the conditions for the motion to proceed were met by his own refusal to disclose these among other items requested;

c. When the respondent’s counsel declined to agree to dates for questioning, Ms. Iadeluca advised in her letter dated December 14, 2016, that this issue would be raised by her on February 9, 2016. So the respondent has actually known since at least December 14, 2015 that the motion scheduled by Horkins J. would be proceeding;

d. Even if the respondent did not realize that a motion was coming, the motion was delivered within the time prescribed by the Rules. While rules may be made to be broken, in some cases they have to be obeyed. It is certainly not unfair in and of itself to hold a party to the Rules;

e. Parties are expected to be able to turn an affidavit between a Wednesday and the next Tuesday even when they and counsel are busy. The weekend gave the respondent two extra days that he would not have had if the motion had been properly served on a Monday returnable that Friday for example.

f. The subject matter of the motion involves disclosure of items that Kelly J. has already said ought to have been disclosed long ago without a motion;

g. There is no real substance to the issue concerning scheduling of questioning. If the respondent wanted to take issue with how much time to schedule and on what dates, that point should have been settled and could have been argued in a very few minutes over the phone if necessary over the past months. But the scheduling of questioning cannot wait two weeks more without interfering with the timing of the combined Settlement Conference/Trial Management Conference;

h. There is also no real substance to the dispute concerning requests for disclosure of back-up for items expressly listed in the respondent’s sworn financial statement. Production of back-up for items listed in the sworn financial statement falls squarely within the Rules and prior orders. As readiness for oral discovery turns on completion of documentary discovery, this item too cannot wait;

i. The applicant’s affidavit contains the correspondence from both sides. There is little to be added by the respondent by way of evidence. This is especially the case because the issues involve largely legal tactics;

j. It is a particular choice to decline to respond to a motion when asking for a adjournment that is contested. A party adopts that tactic at his or her own risk;

k. The respondent declined the offer to give evidence orally in court which would have obviated any concern as to missing information (if any). I note that memory problems are as much an issue in written testimony as with oral. If the respondent just wants to recite information and belief from his counsel, their contemporaneous correspondence is already before the court; and

l. The respondent was represented at the motion by senior, experienced, and capable counsel. While I am generally not moved by arguments that any lawyer in a firm ought to be able to attend when counsel with carriage is unavailable, the issues here are particularly straightforward. Moreover, there was no explanation as to why Ms. Van Wirdum, who has day-to-day carriage of this matter and is the author of the bulk of the correspondence, could not have left Mr. Niman to fend for himself for a few minutes during their trial or over the lunch hour perhaps so that she could appear on this motion as scheduled.

[39] Accordingly, I exercise my discretion to decline the respondent’s request for an adjournment. There is no unfairness to the respondent in proceeding given the time pressure and the risk of severe prejudice to him and the applicant if the combined conferences were to have to move. Moreover the issues at stake are of longstanding and need to be resolved to ensure that the parties are able to be prepared for those conferences in a timely manner.

Dates for Questioning

[40] There is no basis in the Rules to refuse to schedule questioning based on the amount of time taken to examine the party opposite. Questioning has been authorized by order made by Mesbur J. Ms. Iadeluca provided several proposed dates to the respondent’s counsel in early December as is appropriate.

[41] With a witness who has memory problems and has some willingness to engage in tactics with respect to disclosure, it is fair to say that questioning may take longer than one might normally hope. Perhaps it won’t if the testimony is elicited and given in an efficient manner. But, the last person who gets to decide how much time will be allowed for questioning is the witness to be examined. In my view, the applicant should be entitled to question the respondent for two sessions of no more than six (6) hours each. Only time on the record is to count and time spent by counsel arguing on the record is not to count. As noted above, the parties agreed to a first date in February in open court. The second date will be March 16 or 17, 2016 at Ms. Iadeluca’s option. The respondent will answer all questions undertaken at the first examination by March 11, 2016. All questions refused at either session shall be answered right away despite the objection. Rule 34.12(2) of the Rules of Civil Procedure in conjunction with Rule 19(b) of the Family Law Rules will apply to such questions and answers. This includes all questions objected to on the basis of all privileges other than solicitor and client privilege. Questions objected to on the basis that they seek information that is protected by solicitor and client privilege need not be answered at the time. If objections arise during questioning that threaten the completion of the examination and cannot be resolved, I may be contacted in real time to deal with such issues summarily by telephone. I expect that this should not be necessary.

Disclosure

[42] Schedule “A” to the Notice of Motion dated February 3, 2016 sets out the final disclosures sought. I have already dealt with item #1 by having the external hard drive brought to court. If the original Compas hard drive exists as Ms. Van Wirdum’s letter dated January 22, 2016 seems to represent, then it is to be delivered to Ms. Iadeluca immediately. In such circumstances, Ms. Iadeluca’s undertaking will apply to that drive too with the time extended for a further 48 hours from the receipt of the hard drive by Ms. Iadeluca. Item #3 has already been ordered. If the emails have not yet been delivered, they are to be delivered immediately. Items #4(a) to (d), (f) to (h), and (j) to (k) are plainly relevant on their face. While the items may be small in value, there is nothing unreasonable about putting a party to the proof of items expressly listed in his or her financial statement especially in a case where there are allegations of diversion and under-reporting of income alleged. The applicant accepts that item #4(e) has already been disclosed. The respondent lists legal fees as among the debts he discloses in his sworn financial statements. Moreover he says that he has borrowed money from his new spouse to help pay legal fees. The applicant wants proof of the quantum of the debt and is exploring whether the respondent is funneling money from Compas to his spouse to use money of which 45% is allocable to the applicant to pay his legal bills and to create fictitious debt. In light of the respondent’s disclosures of quantums of his indebtedness to his lawyers and to his spouse, there is no inroad into privileged information in seeking proof of dates, amounts of bills, and amounts of payments, with no more, as sought in items #4(i), (l), and (m). All of the materials listed in item #4 are all ordered produced before the close of business on February 17, 22016 except for item #4(e).

[43] Item #2 seeks information from the respondent’s counsel concerning how they fulfilled Justice Kelly’s order that they were to obtain the respondent’s text messages and emails and vet them for privilege. Those questions can be asked during questioning. But the respondent should produce a sworn list of all documents for which privilege has been claimed and have not been produced to the applicant. The list shall include for each such document for which privilege is claimed, its date, parties (if correspondence), the type of privilege claimed, and sufficient particulars to disclose the basis for the claim. This privilege list shall be produce by the respondent to the applicant’s counsel at least 48 hours before the first questioning of the respondent.

IT Experts

[44] There is no property in a witness. Kettling of experts is a well-recognized process and is enshrined in Rule 20.05 of the Rules of Civil Procedure for example. Here the trial expert for one side wishes to speak to the fact expert of the other to understand what the latter in fact did to the computers. As recited above, the story as relayed through client and counsel keeps changing. The Compas hard drive existed and then it did not. Then it re-appeared as recycled. But then it became a separate, external hard drive so it no longer exists again. All of this is occurring in face of a preservation letter. As Kelly J. noted, there may well have been an innocent explanation for the need to copy the data on the hard drive to a new storage medium. But why the original hard drive needed to be destroyed instead of being preserved for review may be an issue for trial.

[45] In my view, the applicant’s expert should have access to the respondent’s IT consultant first on a without prejudice basis. No counsel or clients are to be included in the call or meeting and no audio or video recording is to be made. They are both professionals and are perfectly capable in having a discussion about what they do and did in relation to this application. The applicant’s expert may ask any questions as may assist him in fulfilling his retainer. Answers given by the respondent’s IT expert cannot be used in evidence per se. However, the information may be used to assist the applicant’s expert in fulfilling his role and may form the basis of questions to be asked of the respondent on questioning of course. The filtering of factual, technical, historical information through the respondent and then through lawyers on both sides has impeded the ability of the applicant’s expert to have access to the underlying facts to which the applicant is entitled. The parties’ bickering over the terms of the conversation do so too. The IT consultant is to be told that the respondent’s duty to disclose the facts to the applicant and her expert trumps all obligations of confidence or obedience that the IT consultant may have been told or believe that he owes to the respondent. The consultant cannot be faulted or sued for telling truthful facts to the applicant’s IT expert in the proposed conversation.

[46] In the event that this process does not yield productive results, I will hear a motion to compel the respondent’s IT consultant to attend for questioning under oath. My office may be contacted to schedule a Case Conference by telephone in order to establish a timetable for the motion if one is necessary.

Costs

[47] I will receive no more than (3) pages of submissions on costs from the applicant, including the costs associated with the call between IT consultants, by the close of business on February 17, 2016. The respondent may provide no more than three (3) pages of submissions in response on or before February 22, 2016. Each party shall include a Costs Outline with their submissions as well as any offers to settle on which they rely, if any. Submissions are to be delivered to my Assistant as searchable PDF attachments to an email. No copies of cases are to be provided. References to case law, if any, are to be made by hyperlinks to public sources embedded in the submissions.

F.L. Myers J.

Date: February 11, 2016