In recent years, whether for reasons of convenience or otherwise, emails have become a preferred form of communication while more traditional forms such as telephone and letters have diminished in comparison. Many people, however, appear to be somewhat unguarded and reckless in terms of what they include in emails. In comparison to letters, it should be remembered that emails are equally as discoverable as part of the litigation process and that flippant statements in an email will end up in the hands of the other party and/or the court if they are related/relevant to the court action. In comparison to telephone calls, it should be remembered that emails create a “trail” that telephone calls do not.
Anyone who has been involved in legal action in the employment context is likely aware that document production is an integral part of the process. Document disclosure assists all parties in assessing the strengths and weaknesses of a case and in developing strategies and arguments. While the purpose of this newsletter is to notify and/or to remind people of electronic information disclosure obligations in civil litigation matters, it is important to remember that the document disclosure principles discussed below should also be considered when preparing to appear before administrative tribunals such as labour arbitrators, human rights tribunals and workplace compensation tribunals.
In Newfoundland and Labrador, Rule 32.01 of the Rules of the Supreme Court, 1986 requires a party to disclose all documents relating to every matter in question in the proceeding within the party’s knowledge and to produce those documents, subject to a claim of privilege.
In New Brunswick, Rule 31.02(1) of the Rules of Court requires a party to disclose every document which relates to a matter in issue in an action and which is or has been in the possession or control of a party or which the party believes to be in the possession, custody or control of some person not a party, whether or not privilege is claimed in respect of that document, and to produce the document for inspection if requested, unless privilege is claimed in respect of the document.
In Prince Edward Island, Rule 30.02 of the Rules of Civil Procedure requires a party to disclose every document relating 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, whether or not privilege is claimed in respect of that document, and to produce the document for inspection if requested, unless privilege is claimed in respect of the document.
In Nova Scotia, Rule 15.02(1) of the Civil Procedure Rules requires a party to: make diligent efforts to become informed about relevant documents the party has, or once had, control of; search for relevant documents the party actually possesses, sort the documents, and either disclose them or claim a document is privileged; and acquire and disclose relevant documents the party controls but does not actually possess.
The courts in all four Atlantic Provinces have taken a broad and liberal approach to document disclosure obligations. In Newfoundland and Labrador, the courts have held that the concept of “relating to” is broader than the concept of relevance and that a document will be said to “relate” to a matter in question if it can reasonably be said to enable the party receiving or seeking the information to advance his or her own case or to damage the case of his or her adversary. In New Brunswick, the courts have held: that the purpose of Rule 31 is to discover and reveal, not to cover or conceal; that there is a low threshold test for determining whether a document is relevant; that a party to litigation does not have the right to unilaterally decide on its own that some documents relating to a matter in issue in the action are not relevant; and that when a corporation is affiliated with other corporations, the rules may impose an obligation to disclose all documents which are in the possession and control of the affiliated corporation(s). In Nova Scotia, while the operative word is “relevance” as opposed to “related”, the courts have interpreted “relevance” very broadly and have held that relevant documents include those documents that are “likely to lead to relevant evidence.”
Courts, however, have recognized there is a limit on what a party is required to produce. For example, the Newfoundland and Labrador Court of Appeal has held that although “relating to” is a wide notion, full disclosure as required by the rules of court is limited by proportionality, and a party should only be required to produce that which is necessary to ensure an expeditious, cost effective and fair determination of the merits. In New Brunswick, the courts have held that although the rules of court require production of documents that have a semblance of relevancy, it does not mean there is a blanket licence to require production of each and every document that might have a glimmer of relevancy.
Failure to comply with document disclosure obligations can result in serious consequences, including a finding that the party intentionally destroyed evidence, altered evidence or failed to preserve evidence in litigation that was pending or reasonably foreseeable. Depending on the facts, such a finding can result in a court making a negative presumption against the party who is unable to produce the relevant evidence (i.e. a presumption that the evidence would have been unfavourable to that party). Other potential consequences for failure to comply with document disclosure obligations include costs awards and dismissal of a party’s claim/defence.
Electronic information is a broad concept and includes such things as emails, text messages, cellular phones/blackberry devices, databases, USB drives, external hard drives and portable data storage media, servers, laptops, electronic calendars, and social media (i.e. facebook, etc.).
In Nova Scotia, Rule 16 of the Civil Procedure Rules deals specifically with disclosure of electronic information. This Rule places a duty on each party to review the electronic information it controls to determine what relevant electronic information it possesses, to disclose the relevant electronic information (provided it is not subject to a claim of privilege) and to preserve relevant electronic information once a proceeding is started.
In Newfoundland and Labrador, Prince Edward Island and New Brunswick, there is no specific civil procedure rule or rule of court dealing with disclosure of electronic information.
In Prince Edward there is a sub-committee of the Rules of Court Committee discussing the issue of e-discovery, which could lead to the development of a specific rule to address the issue.
Nevertheless, the definition of “document” includes “a record of any kind” (Newfoundland and Labrador), “data and information in electronic form” (Prince Edward Island), and “information recorded or stored by means of any device” (New Brunswick), which means that even in the absence of a specific rule dealing with disclosure of electronic information, the definition of “document” appears broad enough to capture electronic information. Indeed, court decisions in all four Atlantic Provinces reveal that the broad and liberal approach to document disclosure applies to electronic information.
While every situation is different and requires its own careful analysis, we offer the following general comments for consideration:
- Consider using the telephone rather than always resorting to the use of email as a form of communication;
- Take time to reflect, exercise forethought and discretion, and always consider public perception – if you would not include something in a letter, do not include it in an email;
- Remember that email communications are easily forwarded to others – once you send an email you lose control over where and to whom it goes;
- When communicating in writing, including emails and text messages, avoid such things as exaggeration, negativity, self-criticism, humour, sarcasm and foul language;
- Do not write anything that suggests a cover-up;
- Use attachments to emails carefully and only as necessary;
- Clearly label privileged communication;
- Do not freely circulate letters, documents, emails, etc. between you and your legal counsel so as to protect solicitor-client privilege and/or litigation privilege; and
- Develop and maintain retention and destruction policies that recognize and incorporate document disclosure obligations under the rules of court/civil procedure rules.
Inquiries may be directed to:
New Brunswick- Trisha Gallant-LeBlanc at 506.462.4764
Newfoundland & Labrador – Chris Peddigrew at 709.570.5338
Nova Scotia – Tom Groves at 902.491.4104
Prince Edward Island – Alanna Taylor at 902.629.3921