Snapshot: The following extract is from Warman v. National Post Company, 2010 ONSC 3670 where Justice Short comments on the ramification of parties not agreeing to a discovery plan.

Failure to Agree to Plan

29.1.05   On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.

[75]    The Lawyers Weekly contained in its June 25, 2010 edition a “Focus on Personal Injury”.  One of the featured articles was headed “Why discovery plans add unnecessary complications.”

[76]  In the article the view is expressed that such plans have added an unnecessary complication “making thediscovery process more acrimonious, costly and cumbersome.”

[77]   The story reports:

“The requirement for a discovery plan presents a strategic opportunity for counsel to complicate the discovery process in advance.  Some lawyers have proposed discoveryplans which unreasonably restrict the documentary and oral discovery of their client, while insisting on payment of all their discovery expenses.  Inevitably, there is no agreement on such discovery plans. What ensues or counter-proposals, strongly worded letters, a lack of agreement, and unnecessary expense and complication even before the discovery process.

….it may be that keeping a discovery plan up to date could consume nearly as much time and expense as the discovery process itself.”

[78]   The author describes his own experience and an informal survey of his colleagues practicing in the area of personal injury, and notes that “many lawyers after a good-faith effort at creating and agreeing ondiscovery plans have largely abandoned the process of nurturing this new creature of the rules as too cumbersome, costly and unnecessary.”

[79]  As a result it is reported that Rule 29.1 has been largely ignored in practice.  “There can be no clearer commentary on the rule than the general consensus of disregarding it.”

[80] Certainly there have been few, if any, reported decisions to date dealing with discovery plans. The expectation certainly was not that such plans would not be implemented.  The foregoing discussion on proportionality and the need for a resolution between the parties with respect to a more appropriate level of disclosure perhaps may assist in redirecting the attention of counsel to what I believe was the underlying intention with respect to reducing cost and time incurred as a result of the previous discovery system inOntario.

[81]  In the U.S. this process still seems to be at an early stage. Netzorg notes that building upon the proportionality factors of Rule 26(b)(2)(C) and the work of the Sedona Conference, “some federal courts are slowly beginning to enforce proportionality guidelines against litigants-albeit primarily in the context of electronic discovery.”

[82]  In Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D.421 (S.D.N.Y. 2002) for example, U.S. Magistrate Judge James C. Francis IV developed an eight-factor proportionality test for e-discovery that supplemented Rule 26(b)(2)(C) .The eight factors identified by him, which I adopt, are:

(1)        the specificity of the discovery requests;

(2)        the likelihood of discovering critical information;

(3)        the availability of such information from other sources

(4)        the purposes for which the responding party maintains the requested data

(5)        the relative benefit to the parties of obtaining the information;

(6)        the total cost associated with production;

(7)        the relative ability of each party to control costs and its incentive to do so; and

(8)       the resources available to each party.

[83]  My disquisition on this subject may appear the antithesis of proportional to the subject matter of this specific case. Nevertheless it is clear that the issues raised here will be re-visited in many more cases over the years and I simply have grasped the nettle that presented itself.

[84]  The time has come to recognize that the “broad and liberal” default rule of discovery, has outlived its useful life. It has increasingly led to unacceptable delay and abuse. Proportionality by virtue of the recent revisions has become the governing rule. To the extent that there remains any doubt of the intention of the present rules I see no alternative but to be explicit.

[85]  Proportionality must be seen to be the norm, not the exception- the starting point, rather than an afterthought. Proportionality guidelines are not simply “available”. The “broad and liberal” standard should be abandoned in place of proportionality rules that make “relevancy” part of the test for permissible discovery, but not the starting point.

[86]  If embraced by the courts, parties and their counsel, such proportionality guidelines offer hope that the system can actually live up to the goal of securing for the average citizen, “a just, speedy and inexpensive determination” of his or her case.