Discovery of Documents
(This is an edited version of our Client Guide which provides general information and is made available to our clients to assist them to locate and produce the documents relevant to the issues in the action. This is not intended to constitute legal advice, which by its nature is situation specific. If you have questions about a specific legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation before providing that advice, rather than relying on the general information provided in this Guide.)
Duty to Disclose Relevant Documents
We are required to disclose to the other side all documents which are in your possession, control or power which are relavant to the issues in this action. It is my duty to explain the requirements to you in detail as I am required to sign a certificate indicating that I have done so as part of the affidavit of documents which you will be swearing. The Rules of Civil Procedure are designed to ensure that full disclosure of all documents which relate to the issues in the action is made by all parties. All documents which relate to any issue in this action must be listed in your affidavit of documents. You must include any documents which you now have and any documents which you once had but no longer have. Even documents which are privileged must be listed.
The rules provide sanctions for failure to fully disclose all relevant documents. A court can order that you be cross-examined on your affidavit, require you to deliver a further and better affidavit, prohibit you from relying on an undisclosed favourable document at trial or make any other order the court feels is just.
A Document is Broadly Defined
The scope of documents as defined by the rules is wide and includes letters, contracts and other papers. In addition, we must produce any other defined documents such as a sound recording, videotape, computer records, film, photograph, chart, graph, map, plan, survey, book of account or information recorded or stored by means of any device.
Corporations and Partnerships
If you are swearing this affidavit on behalf of a corporation or partnership, you must ensure that you have determined from others in the corporation or partnership that they do not have documents which are relevant to any issue in this action. You should personally check all likely places where documents may be located.
List of Documents
If you will provide me with the documents which you now have and have not previously sent to me, I will arrange for them to be sorted and listed in an affidavit of documents. I also require a list describing documents which you formerly had but no longer have together with an explanation of when and how they left your possession, control or power. If you know, indicate where the documents are now located.
If you have any documents for which you believe you can claim privilege, please forward those as well. Although we list privileged documents in the affidavit of documents, we are not required to produce them to the other side unless they challenge our privilege claim and obtain a court order requiring us to do so.
Documents are Exchanged
It is my usual practice to exchange copies of documents with the other side and I will do so in this case so that you will be able to see what documents the other side has in its possession, control or power. We will review all documents together prior to the examinations for discovery.
If you become aware of any further documents or errors in the affidavit of documents, you have a duty to disclose these documents or correct errors by delivering a supplementary affidavit of documents. Please let me know immediately if you discover any further documents or there are errors in the affidavit of documents.
Any questions? If you have any questions about discovery of documents, please contact us at:
W. Bruce Drake Hooey Remus Telephone: (416) 362-2051 Facsimile: (416) 362-3646 330 Bay Street, Suite 210 Toronto, Ontario M5J 2S8 eMail: firstname.lastname@example.org Website: www.hooeyremus.com
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