The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery

  • The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery - Public Comment Version
    October 2010

    The recent emphasis in most jurisdictions on the concept of proportionality poses challenges for lawyers, their clients, and judges. The concept has been recognized in rules for many years, but in practice, it has existed in tension with the belief that zealous advocacy notably required the pursuit of any information that might be related to the issues in the dispute. However, civil litigation simply becomes cost-prohibitive and burdensome without early and careful attention to identifying key sources of potentially relevant data and ensuring that only potentially relevant and unique data is preserved, collected and reviewed for production. In practice, the proportionality analysis involves the balance between the issues, the monetary and non-monetary remedies, and the rights in issue against the potential value of an information source in resolving the dispute.

    This Commentary assists in defining the concept of proportionality, its basis in law, and its application in various contexts and provides guidance to find solutions to discovery dilemmas which honour the principle of proportionality. Two of the important tools offered to assist practitioners, clients, and judges are found in Appendix 1, a table of civil procedure rules dealing with relevance and proportionality in Canadian jurisdictions; and Appendix 2, which outlines factors to be considered when applying proportionality analyses at each stage of discovery. These factors are:
    1. The burdens and cost of preservation should be weighed against the potential value and uniqueness of the information when determining whether its preservation is required.
    2. Discovery should initially focus on those sources of information relevant to allegations, defences, and issues that are supported by material facts
    3. Only reasonably accessible and non-duplicative information in support of plausible causes of action should be requested or produced.
    4. Requests for further production should be reasonably specific and targeted.
    5. The burden, cost, and delay of further production should be balanced against the probability of yielding unique information that is valuable to the determination of the issues.
    6. Refusals to requests for further production, not based on relevance or privilege, should include details of the burden, cost, delay, and/or prejudice on which the refusing party is basing its position.
    7. Burden and expense that are the result of actions taken by the party asserting undue burden or expense should be weighed against that party.
    8. A party’s previous efforts to resolve problems through candour and cooperation should be considered, including in the cost award.
    9. Non-monetary factors should be considered when evaluating the burdens and benefits of discovery.
    10. The value of technological tools and approaches to reduce the volume of irrelevant and/or duplicative information should be considered in weighing the burden and cost.