top ten tips for drafting and implementing a discovery planadvocast.ca/assets/pdf/discovery2016/7_2...

© 2016 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.

Civil Litigation Skills Certificate Program Mastering Winning Discovery Techniques

Top Ten Tips for Drafting and Implementing a Discovery Plan

Patrick Brown McLeish Orlando LLP

Introduction Since changes to the Rules of Civil Procedure came into effect on January 1, 2010, a Discovery Plan is now a mandatory requirement in the discovery process. The parties are to agree to a written Discovery Plan in advance of the examinations for discovery to establish the scope of documentary evidence and other relevant information. This paper will outline the top ten tips (in no particular order) for drafting and implementing a Discovery Plan. The tips are intended, firstly, to assist counsel in complying with the Rules respecting Discovery Plans and, secondly, to ensure a cost-effective and efficient discovery process for all parties that should strategically assist with your case. Top Ten Tips 1. Schedule Specific Examinations for Discovery Before Sending the Discovery Plan The rule requires that the Discovery Plan include the names of persons to be produced for examination. Setting the date of examinations for discovery before sending the Discovery Plan will allow counsel to provide the date, time, and location of the examination for discovery, in addition to the names of persons to be produced. 2. Attach a Draft Affidavit of Documents A helpful tip is to ensure that a draft Affidavit of Documents is provided at this stage and a request to the opposing counsel to advise which Schedule A documents they would like. Complete disclosure is required throughout the litigation, but early disclosure of documents will assist defence counsel with obtaining authority from their clients and setting reserves. 3. Include a List of Mediators Provide a preferred list of mediators at the end of the Discovery Plan to start the process of arranging mediation early in the litigation proceeding. While mediation may


not always be successfully scheduled at that time, it will be useful to know of any agreements or disagreements with respect to mediators early on. A set date with a named mediator is preferable, if able. 4. Standard Template Discovery Plan It is efficient practice to have a standard template to utilize in similar actions that can be easily tailored to suit the facts and circumstances of the case. For example, in the area of personal injury, there could be a template for motor vehicle accidents, slip and fall accidents, and actions involving road authority defendants. Standard templates for various actions are enclosed for your reference as Appendix A, B, and C. 5. Intended Scope of Documentary Discovery It is a mandatory requirement that the Discovery Plan include the intended scope of documentary discovery. In that respect, it is important to consider the principles of proportionality and relevance in deciding what documents should be produced. Keep the language of this section broad enough so that it may encompass documents that are not yet identifiable, but narrow enough that it is still relevant to the issues in the matter. You do not want to limit the scope of what evidence may be produced but refrain from such broad language that would be too costly or time-consuming for the parties to obtain and produce. Further, a line simply stating “Any and all documents relevant to the issues of liability and damages” would render the Discovery Plan meaningless. 6. List Any Areas of Disagreement After exchange of the Discovery Plan, if the parties are unable to agree on something particular in the Discovery Plan, there should be an additional paragraph listing the areas of disagreement. That way, it still allows the parties to continue to examinations for discovery without the need to re-schedule or cancel them. Any disagreements can be addressed at a later date and may become moot in any event after examinations for discovery. 7. Electronic Discovery For examinations for discovery that involve electronic discovery, counsel shall consult The Sedona Canada Principles Addressing Electronic Discovery, which are guidelines specific to electronic documents. 8. Obligations under the Rules of Civil Procedure Remain Paramount It would be prudent to include a line to indicate that the Discovery Plan in no way derogates from the parties’ responsibilities to fulfill their obligations under the Rules.


This is to ensure that parties cannot sidestep their disclosure obligations by pointing to the Discovery Plan at a later stage.

The parties acknowledge and agree that this proposed Plan shall not restrict the parties’ respective obligations under the Rules to produce relevant documents not otherwise contemplated within the scope of this Plan.

9. Establish Costs and Manner of Production of Documents Counsel should be clear about the payment of obtaining and producing documents in advance of discovery. One option is to request payment of the reasonable costs associated with obtaining and producing the documents. Alternatively, a second option would be to request repayment ($0.25 per page) for making photocopies. 10. Plaintiff’s Counsel Should Draft the Discovery Plan In order to obtain direction and control of the litigation process, it should be up to counsel for the Plaintiff(s) to prepare the Discovery Plan. That way, counsel for the Plaintiff(s) can use their standard templates setting out their preferred wording and documents they would like to obtain for the examination for discovery. Opposing counsel will, of course, have an opportunity to provide suggestions to the Discovery Plan, but they can do so after review of the Plaintiff’s proposed Discovery Plan.


INDEX OF SAMPLE TEMPLATES

Appendix Sample Discovery Plan

Appendix “A”

Motor Vehicle Accident cases

Appendix “B”

Occupiers Liability cases

Appendix “C”

Road Authority cases


APPENDIX “A”

J. Patrick Brown Email: [email protected]

DATE

Defence counsel Address

Attention: Counsel

Dear Ms. xxx:

RE: Our Client: XXXX Your Client: XXXX

MVA: XXXX Discovery Plan Rule 29.1.03

In preparation for the Examinations for Discovery, we would propose the

following Discovery Plan in accordance with Rule 29.1 of the Rules of Civil Procedure.

Rule 29.1.03(1)(a): The Intended Scope of Documentary Discovery

The parties agree that the intended scope of the documentary discovery

with respect to the examination of each of the parties shall be as follows, and

acknowledge and agree that this proposed plan shall not restrict the parties respective

obligations under the Rules to produce relevant documents not otherwise contemplated

within the scope of this plan:

Defendant(s)

1. Any and all liability documentation including:

Police and Investigation Records

We ask that you produce any and all police records and investigation

records in your possession, including but not limited police field notes; police notebook

notes, witness statements, accident reconstruction reports, raw data, black box data,


certificates of analysis, alcohol influence reports, audiotapes, videotapes, photographs;

and any other documents, whether investigative or otherwise, generated, obtained or

compiled by the police, or otherwise kept by the police.

Any and all Damage Documentation

We ask that you obtain and produce any and all independent damage

documentation including photographs of the damaged vehicles and all damage

documentation including repair invoices and estimates.

Any Witness Statements

We ask that you produce any statements obtained by the Defendant, or

Defence counsel, or anyone retained by Defence counsel with respect to the

circumstances of the accident. In the event that you are claiming privilege on any

statements, we request that you provide a summary of the information obtained, and

advise when the statement was obtained and who the statement was obtained by in

advance of the discovery.

Emergency Service Provider Records

If any services were rendered to the Defendant following the accident, we

ask that you obtain and produce those records including ambulance records, fire

department records and tow truck records.

Surveillance Records

If any surveillance or investigation of the Plaintiff has been conducted, we

ask that you provide, in advance of discovery, a summary of the surveillance, including

but not limited to, the name and address of the person conducting the surveillance, a

summary of their observations of the plaintiff, and if any video or photographs were

taken, what the video or photographs depict as well as the times the video camera was

turned on and off. In the event that you intend to rely on the surveillance at trial as part

of your case, we would ask that you also produce the surveillance reports, video and

photographs before discovery.

Insurance Records of the Defendant

We ask that you produce any document proving the existence of a policy

of insurance and the limits of the policy. If there are any coverage issues, the policy

and provisions pertaining to the issue.


Maintenance Records

We ask that you obtain and produce any document pertaining to the

Defendant’s automobile including any and all records in the possession of the

Defendant, and/or for which the Defendant is able to obtain through third parties

pertaining to any maintenance performed to the Defendant’s automobile in the three

years prior to the motor vehicle accident, including but not limited to regularly scheduled

maintenance, tune ups, and any repair work done for previous accidents, or damage

otherwise caused.

Health Records of the Defendant

We ask that you obtain and produce any medical records pertaining to a

medical condition which could impact the Defendant’s ability to operate a motor vehicle

within a reasonable time period prior to the accident, depending upon the particular

condition in question. This includes any medical documents pertaining to the

Defendant’s vision and hearing.

If the Defendant was taken to hospital immediately following the accident,

we ask that you obtain and produce any hospital records pertinent to liability, including,

but not limited to any reports or records with information as to the Defendant’s alcohol

consumption and/or drug consumption.

Cellular Telephone or Electronic Device Records

We ask that you obtain and produce records pertaining to any electronic

device for which the Defendant had on his person or in his vehicle at the time of the

accident.

The Plaintiff

1. Liability documentation, including but not limited to:


We will request and produce the motor vehicle accident report, self

reporting collision center forms, driver searches, vehicles searches, and any and all

police records obtained by our office.


Damage Documentation

We will request and produce any and all vehicle damage documentation

including photographs from the insurer responsible for the vehicle the plaintiff was in.


We will request and produce the ambulance call report and any fire

department records.

2. Damages documentation, including but not limited to:

We will request and produce;

Family Doctors records up to five years pre accident

Decoded OHIP summary

Ministry of Finance Canada Revenue Agency Tax Returns

Hospital records from the Treating Hospitals

Employment records from Employer

Accident Benefits File

Rule 29.1.03(3)(b): Dates for service of Affidavit of Documents

The parties agree to provide their respective unsworn Affidavit of

Documents in advance of the examinations for discovery. In that regard, please find

enclosed the Plaintiff’s draft Affidavit of Documents.

The parties agree to serve their respective Sworn Affidavit of Documents

in advance of or at the time of the examination for discovery.

Rule 29.1.03(3)(c): Information Respecting the Timing, Costs and Manner of

Production of Documents

The parties agree that they will use their best efforts to request and

exchange documents listed above before the discovery.


The parties agree to pay the reasonable costs of obtaining and producing

the documentation listed above.

If you do not wish us to obtain any of the documents listed under the

Plaintiff’s documents, kindly advise.

Please also advise which Schedule A documents as listed in the Plaintiff’s

draft Affidavit of Documents you require.

Rule 29.1.03(3)(d): Names of Persons To Be Produced For Examination

We have listed a proposed schedule for Discoveries. If these dates are not suitable,

kindly contact our office and we will coordinate dates that accommodate you and your

client.

EXAMINATIONS FOR DISCOVERY

Date and Time Party(ies) Being

Examined

Location

Wednesday, August 22,

2012 @ 10:00 a.m.

Defendant Network Reporting &

Mediation

1 First Canadian Place

100 King Street West,

Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.

Plaintiff Network Reporting &

Mediation


100 King Street West

Suite 3600

Toronto, Ontario


Rule 29.1.03(3)(e): Any Other Information

Once you have obtained instructions from your client, we would ask that

you contact our office to select a mediator and dates for said mediation. We have

attached a list of mediators we are agreeable to using. If you wish to propose a

mediator not on the list please do so for our consideration.

Mediator A Mediator F Mediator B Mediator G Mediator C Mediator H

Mediator D Mediator I Mediator E Mediator J

We shall assume that the above Plan is agreeable unless we hear from

you within the time frame provided.

Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown


APPENDIX “B”


DATE


Attention: Counsel

Dear Ms. xxx:











The Discovery of the Defendants, XXXXXX

1. Any and all liability documentation including but not limited to:

Business Records We ask that you obtain and produce:

o Any records pertaining to relevant procedures or protocols employed by the Defendants, including but not limited to procedures and protocols


relating to the cleaning, maintenance, inspection, safety, and security of the premises;

o Any records pertaining to outside contractors providing cleaning, maintenance, inspection, safety, and/or security services to the premises;

o Any contracts pertaining to the maintenance, inspection, safety, and security of the premises that were in effect at the time of the incident;

o Any training or instructional manuals with respect to the responsibilities of employees and/or outside contractors including but not limited to responsibilities relating to the cleaning, maintenance, inspection, safety, and security of the premises;

o Any records pertaining to the cleaning, maintenance, inspection, safety, and security of the premises including, without limitation, logs, notebook records, and diary entries;

o Any records pertaining to the incident, its investigation and/or remedial action taken; and

o Any records or surveillance which captured or recorded the incident.

Employment Records We ask that you obtain and produce:

o Names, addresses and contact information of the employees and any independent contractors who were working on the day of the incident, and on the day prior to the incident;

o Any records pertaining to the time the employees or independent contractors began and ended their shifts at work on the day of the incident and on the day prior to the incident;

o Any records pertaining to the work being done by the employees or

independent contractors on the day of the incident and for a reasonable


period of time prior to the incident sufficient to properly explain the responsibilities of these persons; and

o Any records pertaining to the past performance of the employees or

independent contractors who were working on the day of the incident and on the day prior to the incident.

Any Witness Statements

We ask that you produce statements obtained by the Defendants, or Defence

counsel, or anyone retained by Defence counsel with respect to the

circumstances of the incident. In the event that you are claiming privilege over

any statements, we request that you provide a summary of the information

obtained and advise when the statement was obtained and who the statement

was obtained by in advance of the discovery.

Surveillance Records

If any surveillance or investigation of the Plaintiff has been conducted, we ask

that you provide in advance of Discoveries a summary of the surveillance,

including but not limited to the name and address of the person conducting the

surveillance, a summary of their observations of the Plaintiff, and if any video or

photographs were taken, what the videos or photographs depict as well as the

times the video camera was turned on and off. In the event that you intend to

rely on the surveillance at trial as part of your case, we would ask that you also

produce the surveillance reports, video and photographs before Discoveries.

Insurance Records of the Defendant We ask that you provide any document proving the existence of a policy of

insurance and the limits of the policy. If there are any coverage issues, we ask

that you provide the policy and provisions pertaining to the issues

The Plaintiff












department records.





























client.



Examined

Location


2012 @ 10:00 a.m.


Mediation



Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.


Mediation




Suite 3600

Toronto, Ontario










Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown


APPENDIX “C”


DATE


Attention: Counsel

Dear Ms. xxx:











Defendant, City of XXXX

1. Any and all liability documentation including:

Police and Investigation Records We ask that you produce any and all police records and investigation records in

your possession, including but not limited police field notes; police notebook

notes, witness statements, accident reconstructions reports, raw data, black box


data, certificates of analysis, alcohol influence reports, audiotapes, videotapes,

photographs; and any other documents, whether investigative or otherwise,

generated, obtained or compiled by the police, or otherwise kept by the police.

Insurance Records of the Defendant We ask that you produce any document proving the existence of a policy of

insurance and the limits of the policy. If there are any coverage issues, the policy

and provisions pertaining to the issue.

Municipal standards and guidelines Regarding design, construction, maintenance, inspection, snow and ice

removal/treatment or signage for the area in question.

Municipal and departmental policy and procedure manuals

Including any written material that may resemble a policy, practice, procedure

and/or prohibition, and can include manuals regarding maintenance, emergency

responses, snow removal, salting, sanding, ploughing, winter maintenance, cold

patching, work orders, and inspections for the road and area in question.

Municipal Council documents regarding design and repair of roadway

Including Council Minutes relating to the discussions concerning the roadway in

question; reports and studies prepared for Council regarding the roadway; the

municipal budget in place during construction, the municipal budgets for when

improvements may have been recommended; written memorandum, notes and

directives to and from Council, staff, and third parties regarding the deficient

roadway.

Applicable bylaws, ordinances, city plans, and drawings

Agreements between the Municipality and other Government Authorities

Including those relating to the construction, maintenance, and repair of the subject

property including production of all contractual documents, including amendments.

Agreements between the Municipality and Subcontractors

More specifically, production of all agreements, contracts, subcontracts,

amendments, appendix, correspondence, performance reviews, complaints, etc.

between the municipality and subcontractors relating to the construction,


maintenance, repair, and any invoicing and work orders for the work performed for

the area in question.

Training manuals, directives, and guidelines Regarding maintenance, emergency responses, snow removal, salting, sanding,

ploughing, winter maintenance, cold patching, work orders, and inspections for the

area in question.

Seasonal schedules and protocols

For the area in question during the 2009/2010 winter season.

Complaints policy and procedure manuals

Including any documentation relating to the receipt and processing of complaints for

the area in question.

Complaint documentation

Including any documents relating to the processing of the complaint, action taken,

investigations, interviews, and remedial action taken for the area in question.

Roadway Studies, Statistics, Appraisal Sheets and Reports

Including any studies, statistics, appraisal sheets and reports dealing with the

volume of traffic and recommendations made for improvement.

Weather condition reports kept by Municipality Including any reports detailing weather and road conditions, including snow

accumulation, forecasts, and weather warnings before the above noted collision

took place.

Municipal collision summaries For the area in question.


Communication log sheets and records

Including any internal communications between road patrols, road crews, ploughs

and salting and sanding operators including radio logs, phone logs, after hours

service requests, dispatch logs, and dispatch sheets for the area in question.

Daily activity sheets Including any daily activity sheets detailing the activities of the Municipalities

employees in relation to the above noted incident and location.

Time cards and log sheets

Including any time cards and log sheets detailing the start and finish times of patrol

and maintenance crews for the area in question.

Patrol Diaries Including diaries are regularly maintained by supervisors, patrol workers,

maintenance workers, and equipment operators for the location of the collision and

surround areas.

Roads inspection schedules, logs and reports

Including any documents detailing when and who conducted the inspection of the

roadway in question prior to the collision.

Ploughing schedules, logs and reports

Including any documents detailing when and who was responsible for ploughing the

roadway in question.

Sanding and salting schedules, logs and reports Including any documents detailing when and who was responsible for salting and

sanding of the roadway in question.

Employee(s) file Including job applications, resumes, job descriptions, and performance reviews for

those responsible for maintenance, emergency responses, snow removal, salting,

sanding, ploughing, winter maintenance, cold patching, work orders, and

inspections for the area in question.


Written directives regarding sand/salt mixture

Including any directives concerning the agents, ratio of mixtures, and the rate of

application.

Tally Sheets Relating to the load of salt, sand or other agents expended by the spreaders.

Dickey-John ICS Material Spread Data Tapes.

The Plaintiff











department records.





























client.




Examined

Location


2012 @ 10:00 a.m.


Mediation



Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.


Mediation



Suite 3600

Toronto, Ontario











Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown