In Sullivan v. Northwood Media Inc., 2019 ONSC 9, Master Donald E. Short provided litigants with a novel approach to resolving disputes over discovery plans, a procedural step imposed by Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194. Expressly adopting the approach of “baseball style” arbitration, Master Short required that the litigants complete their discussions in light of detailed observations he provided in his reasons and, failing agreement, return to court with their respective proposals as to the most practical and reasonable approach. Absent the most unusual circumstances, the court would not “split the difference” but choose one of the competing alternatives.
Plaintiffs had instituted litigation against Defendants, alleging copyright infringement and seeking $10 million in damages. Despite extensive agreement on the pre-trial exchange of information, the parties had deadlocked and sought the court’s assistance in resolving dispute to finalizing a “Discovery Plan”.
Amendments to Ontario’s Rules of Civil Procedure (“Rules”) effective January 2010 introduced the concept of a “Discovery Plan” for civil litigation with an emphasis on “proportionality”. In their first iteration, the amended Rules omitted express mention of the court’s authority to impose a Discovery Plan should litigants not agree and a Discovery Plan. In such instances, relying on Rule 1.04(2), Master Short in TELUS Communications Company v. Sharp, 2010 ONSC 2878 determined that the court did have authority, albeit not express.
A Rule 29.1 Discovery Plan includes the following: discovery of documents – Rule 30; examination for discovery – Rule 31; inspection of property – Rule 32; medical examination – Rule 33; and, examination for discovery by written questions – Rule 35.
The contents of a Discovery Plan are currently set out as follows:
“Rule 29.1.03(3) The discovery plan shall be in writing, and shall include,
(a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action;
(b) dates for the service of each party’s affidavit of documents (Form 30A or 30B) under rule 30.03;
(c) information respecting the timing, costs and manner of the production of documents by the parties and any other persons;
(d) the names of persons intended to be produced for oral examination for discovery under Rule 31 and information respecting the timing and length of the examinations; and
(e) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action.”
Rule 29.2.03 addresses “proportionality” in the context of discovery and outlines the following considerations:
“Rule 29.2.03(1) In making a determination as to whether a party or other person must answer a question or produce a document, the court shall consider whether,
(a) the time required for the party or other person to answer the question or produce the document would be unreasonable;
(b) the expense associated with answering the question or producing the document would be unjustified;
(c) requiring the party or other person to answer the question or produce the document would cause him or her undue prejudice;
(d) requiring the party or other person to answer the question or produce the document would unduly interfere with the orderly progress of the action; and
(e) the information or the document is readily available to the party requesting it from another source.”
In the copyright litigation before Master Short, the parties had attempted to reach agreement on a Discovery Plan but did not reach agreement on certain key elements. Master Short was alert to the dilemma a party faced if it was dissatisfied with a determination by the court on a Discovery Plan. Was a party obliged to appeal promptly or risk argument that it had acquiesced by executing on the Discovery Plan imposed by the court? He considered that the appropriate manner would be to consider such determinations as interlocutory, pending a further order from the court when a more complete record is constituted after an initial round of discoveries. See paras 33 and 112.
Master Short readily acknowledged the efforts of the parties to resolve their differences in establishing a Discovery Plan, noting that “I commend the parties for their approach to a behemoth such as this case”. Despite commendable efforts, the parties did have four (4) specific areas of disagreement, which Master Short identified at para. 59 and following.
His detailed reasons at paras 28-94 identify different issues raised by the particular litigation and how the court would approach discovery for the parties in their litigation, including scope of discovery, respective obligations to produce, test cases, and dates for oral and documentary discovery. Those detailed reasons served as both an initial determination as well as guidance for discussions between the parties.
The reasons are of particular interest to dispute resolution practitioners because of the approach Master Short adopted for guiding the parties’ subsequent discussions. His reasons concluded with paras 95-112 which contain section XIV entitled “Postscript: Final Offer Selection for Contested Discovery Plan”. The section sets out a novel approach which Master Short designed to prevent a court from ‘splitting the difference’.
Balancing the court’s resources and protection of each party’s position as to what is to be produced and on what basis, Master Short turned to “baseball style” arbitration or final offer arbitration.
“[106] While considering the present case it struck me that the possibility of undertaking tasks under the newly amended rule for Discovery Plans, might effectively utilize the approach of a ‘baseball style” arbitration.
[107] Under that system the arbitrator may not pick a “middle ground”. Rather, the result must be a selection of one or the other side’s position in its entirety. While that might work for a single establishment of an appropriate contract dollar value, the present process requires some regard to applicable nuances.
[108] As a consequence, I am proposing that if the parties are seeking the Court’s assistance in establishing a discovery plan they should each define the nature and extent of the categories of production they assert is appropriate for each area of production sought by each side.
[109] Thus, each ach party would describe its proposal for the terms relevant to a specific type of information sought. For example, for production of previous record medical records, one side might propose three years pre-accident while the other proposes 10 years.
[110] To facilitate this process, my concept would be that, except in most unusual circumstances, the court’s normal approach should not be to “split the difference”. the parties should expect the court will choose the “most practical and reasonable” of the two choices proposed by the parties in each category of production.
[111] The conventional wisdom is that such an approach forces both sides to strive to be more reasonable in selecting their proposed time. Establishment of a discovery plan while avoiding a detailed analysis by the court of the specific minutiae of the competing alternatives for each component of the Discovery Plan will save costs and expedite the process.”
Having provided the above framework which obliged each party to put forward its most reasonable foot, Master Short left the parties to discuss and agree upon a Discovery Plan “with the directions and guidance contained in this decision”. He noted that neither side had “won this motion” but the parties had now “addressed the matter of crafting a Discovery Plan by implementing a method consistent with the present language of [Rule 29.1.05]”.
urbitral note – The reasons illustrate a novel approach drawn not only from arbitration but from one of arbitration’s less-than-common styles of resolving disputes. Unlike baseball style or final offer arbitration, Master Short did front load the approach by providing the parties with detailed albeit initial guidance on the issues raised in the discovery plan, prior to the partis submitting their competing version of the most reasonable approach to their remaining disputes over discovery. In addition, he invited the parties to consider the order as interlocutory and open to reconsideration once more information had been disclosed.
The reasons provided and the approach adopted illustrate the court’s flexibility and innovation when providing its own services to litigants seeking to resolve disputes-within-disputes. Such efforts to streamline the dispute resolution process are commendable. They provide not only solutions to litigants but guidance to arbitral parties and arbitral tribunals as well.