COURT FILE NO.: CV-15-523524-CP

DATE: 2019-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TARRIE ALGERNON PHILLIP

Plaintiff (Moving Party)

• and -

DELOITTE MANAGEMENT SERVICES LP, DELOITTE & TOUCHE LLP

Defendants (Responding Parties)

BEFORE: Justice Edward P. Belobaba

COUNSEL: Andrew Monkhouse and Alexandra Monkhouse for the Plaintiff / Moving Party

Patricia D. S. Jackson, Lisa Talbot, Rebecca Wise and Davida Shiff for the Defendants / Responding Parties

HEARD: In writing

Motion for a Further and Better Affidavit of Documents

[1] This is a certified class action[^1] that is moving forward to an adjudication of the common issues. The core issue is whether the document reviewers hired by Deloitte as independent contractors were employees and thus entitled to the benefits provided under the Employment Standards Act[^2] such as overtime, vacation and holiday pay.

[2] The plaintiff brings this motion for a fuller and better affidavit of documents. The documents requested by the plaintiff are organized under 11 categories. I will discuss the documents in each of these categories and rule accordingly.

Discussion

➢ Document Requests #1, 2, 3, 4: A list of document review projects, reviewers invited to participate in each project, names of reviewers who participated in each project, and total hours worked by each reviewer on each project.

[3] The defendant resists production on several grounds including the fact that no such documents exist. The law is clear that the defendant has no obligation to generate new records to satisfy the plaintiff’s documentary request.[^3] Because the requested documents do not exist, they cannot be produced.

[4] The defendant, however, has generously offered to manually create the requested documentation. The plaintiff has accepted the defendant’s offer.

[5] The documents in categories #1, 2, 3 and 4 will be created by the defendant and produced to the plaintiff.

➢ Document Request #5: The names of reviewers on the roster who were not invited to participate in each project.

[6] I accept the defendant’s evidence that while it maintains a roster of individuals who have indicated an interest in performing document review, the roster is a “live” document. In other words, it is updated in real time and overwritten as document reviewers are added or removed from the roster. There are no prior versions of the roster.

[7] Thus, it would not be possible to cross-reference the document reviewers who were invited to participate in any given document review project (even if this could be ascertained) with all the document reviewers on the roster at that particular time.

[8] Because document #5 does not exist, the court cannot order its production.

➢ Document Request #6: Any contemporaneous tracking of reviewer activity from Relativity software.

[9] The plaintiff requests a list of any contemporaneous tracking of reviewer activity using Relativity software, the document review platform sometimes used by the defendant in the course of its document review work.

[10] The defendant’s evidence, uncontroverted, is that it does not have a practice of evaluating any individual document reviewer’s performance (including the pace and accuracy of their document review work) and has never used Relativity (or any other program) to track individual reviewer activity.

[11] Because the requested tracking documentation does not exist, it cannot be produced.

➢ Document Request #7: Representations, requests for proposals, contracts and other communications between Deloitte and its clients.

[12] The plaintiff requests a list of the representations, requests for proposals, contracts and other communications between the defendant and its (mainly) law-firm clients. The plaintiff’s factum appears to suggest that this request is limited to communications and other documents bearing on the quality of the document reviewers and how the defendant ensured the quality of their work.

[13] The defendant makes several arguments including the fact that if the plaintiff’s request is indeed limited to communications which bear on the “quality” of document reviews, no such documents exist.

[14] The defendant’s evidence is that the parameters of its document review projects are set out in the letters of engagement (LOEs) that were entered into with the client. With respect to the “type of reviewers that Deloitte would use” and “how Deloitte would ensure that the quality of the review met the client’s expectations,” the defendant says that the LOEs do not contain this kind of information. They typically reference the fact that the defendant will keep the client apprised of the progress of the document review and they may contain reference to the fact that document reviewers will be legally trained, if that has been specifically requested by the client.

[15] Otherwise, says the defendant, the communications with clients do not contain any information relating to the type of reviewers assigned to a particular project or the means by which the defendant would ensure the quality of the review.

[16] Given this evidence, it appears that no “quality” related documents exist. If the documents do not exist, they cannot be produced.

➢ Document Request #8: Copies of documents or communications amongst management on the decision to abandon ATD’s policy of requiring document reviewers to be licensed lawyers with LawPro insurance, and of how the decision to reduce compensation from $50/hr to $47/hr was made.

[17] The defendant acquired the assets of ATD Legal Services, the predecessor document review business on January 14, 2014. The sale closed two days later. The defendant immediately advised the document reviewers that ATD’s requirements that reviewers be licensed lawyers and carry LawPro insurance were being eliminated. At the same time, the hourly pay rate for reviewers would be reduced from $50 per hour to $47 per hour.

[18] The document reviewers were informed about this change in policy in an e-mail sent to them by the defendant on January 14, 2014:

Hello Team. We have a crazy new project which will be starting this Friday…. The good news is that for this contract, reviewers will not require LawPro insurance. The less good news is that as a result the hourly rate for this contract is $47.

[19] The plaintiff suggests that the reduction in the hourly rate was intended to be offset by the elimination of the cost of carrying LawPro insurance. However, any such financial saving, says the plaintiff, would only be achieved if the reviewers were working exclusively for the defendant and would therefore have no need for LawPro coverage for work done for other clients. The defendant intended and understood this reality, argues the plaintiff, and hence the relevance of the requested documentation.

[20] I am not persuaded by this line of reasoning. It is true that unlike ATD, the defendant decided to characterize document review as non-legal work[^4]. It follows that LawPro coverage would no longer be needed on the defendant’s projects. It does not follow, however, from the information provided in the email noted above, and especially from the “less good news” remark about the $3 per hour wage reduction, that the defendant must have intended and expected that most of its reviewers would work exclusively for Deloitte.

[21] The plaintiff argues that the requested documents are relevant because they will “clarify whose business the document review practice was and why Deloitte assumed that none of the purported independent contractors would need LawPro for other aspects of their careers outside their relationship with Deloitte.” The defendant’s evidence, again uncontroverted, is that it made no such assumption – it simply removed the requirement that the document reviewers have LawPro insurance for the work that was done for the defendant.

[22] I agree with the defendant that the plaintiff’s basis for this request is speculative and that his factual assumptions have no evidentiary foundation.

[23] The documents in this category need not be produced at this time.

➢ Document Request #9: The defendant’s insurance policy

[24] The plaintiff seeks a copy of the defendant’s insurance policy under Rule 30.02(3) for his inspection. The defendant has provided the plaintiff with a certificate confirming that it has insurance relating to this action in an amount exceeding the amounts at issue. The defendant says this is sufficient for the plaintiff’s purposes.

[25] I do not agree. Rule 30.02(3) is precise. It refers to an insurance policy, not a certificate of insurance or a letter of credit or any other such documentation that would arguably provide a reasonable measure of reassurance about financial capability.

[26] The plaintiff is entitled to the production of what is described in the Rule. The defendant must produce the insurance policy.

➢ Document Request #10: A fully itemized Schedule B, containing correspondence between the defendant and its outside counsel and correspondence that is “litigation privileged”

[27] The defendant has delivered a Schedule B providing information about 11 documents, including the document’s title, date, author, recipient, carbon copies, and privilege type. The plaintiff asks that the defendant be further directed to include in its Schedule B all correspondence with its external counsel (Torys) as well as all correspondence relating to this litigation even though the plaintiff appears to concede that the latter would be covered by litigation privilege.

[28] In my view, the defendant’s obligations with respect to Schedule B have been satisfied. The plaintiff is not entitled to know the timing and the nature of communications between the defendant and its counsel with respect to the litigation in issue. The reason is obvious. The disclosure of that level of detail between counsel and her client would reveal substantially more than a party to litigation is entitled to know, without any legitimate purpose. Moreover, if such an obligation existed, it would require an updating of Schedule B whenever counsel and the client further communicated. The plaintiff’s request for this level of detail is misguided and easily dismissed.

➢ Document Request #11: Inspection of all documents listed in Schedule B

[29] The plaintiff requests that the court inspect the documents currently listed in Schedule B.

[30] The applicable rule is Rule 30.06 which addresses the judicial inspection of documents over which a claim to privilege has been made. Rule 30.06 specifically requires the plaintiff to lead evidence that the claim to privilege has been improperly made.

[31] The plaintiff has led no such evidence. His request for judicial inspection is speculative and premature and therefore easily dismissed.

Disposition

[32] Of the 11 categories of documents requested by the plaintiff, one is granted (the copy of the defendant’s insurance policy) and the other ten are dismissed.

[33] I note again that the defendant has volunteered to create and deliver the documents requested in #1, 2, 3 and 4.

Costs

[34] The defendant has prevailed in large part on this motion and is entitled to reasonable costs on a partial indemnity basis. If the parties cannot agree on the quantum, I would be pleased to receive brief costs submissions – within 21 days from the defendant and within 21 days thereafter from the plaintiff.

Justice Edward P. Belobaba

Date: December 19, 2019

[^1]: Sondhi v Deloitte Management Services LP, 2018 ONSC 231. Ms. Sondhi, the original representative plaintiff was rejected by the court as unsuitable. She was replaced by Mr. Phillip, the current representative plaintiff. The matter continues as Phillip v Deloitte. [^2]: Employment Standards Act, 2000, S.O. 2000, c. 41. [^3]: Lacalamita v. McCarthy Tetrault LLP, 2010 ONSC 3724, at paras. 7-8. [^4]: Making the work potentially subject to the ESA.