Tag: Rule 7-1(13)

"Investigative Stage" Trumps ICBC's Litigation Privilege Claim


Given ICBC’s monopoly over vehicle insurance in BC they typically have to perform multiple roles following a collision including investigating the issue of fault in order to make internal decisions regarding the premium consequences for the customers involved in the crash.  Documents prepared during this ‘investigative‘ stage generally need to be produced during litigation and claims for litigation privilege will fail.  Reasons for judgement were released this week further demonstrating this fact.
In this week’s case (Fournier v. Stangroom) the Plaintiff was injured in a 2007 collision.  In the early days following the crash and well before litigation got underway ICBC retained an engineering firm to inspect the Plaintiff’s vehicle.  The engineering firm communicated their findings to ICBC.  In the course of the lawsuit the Defence lawyer commissioned an expert report from the same firm but did not exchange it with the Plaintiff’s lawyer.
The Plaintiff made the typical document disclosure demands from the Defendants.   These were not complied with in a satisfactory fashion resulting in a Court application.   The Defence lawyer argued that the full file from the engineering firm is subject to litigation privilege.  Master Caldwell disagreed and ultimately ordered better document disclosure inlcuding production of the engineering firms materials documenting their initial investigation.  In making this order Master Caldwell provided the following reasons:




[11] On August 9, 2007 the initial adjuster on the file requested MEA or one of their engineers to examine the plaintiff’s vehicle in order to determine whether the plaintiff was wearing his seatbelt at the time of the collision. The engineer did so, communicated with the adjuster the following day with questions and subsequently reported to the adjuster on September 13, 2007. That adjuster referred to that report as being sufficient for his purposes; the next adjuster, Ms. Madsen referred to the “verbal report” as being “sufficient for the purposes of handling the claim SHORT OF LITIGATION” (emphasis mine).

[12] In early 2011 defence counsel commissioned MEA to prepare an expert report, apparently regarding the seatbelt issue, for possible use at trial; he says that since such a report has now been requested, the engineer’s file material, notes and such are not producible unless and until the report is received and provided to plaintiff’s counsel 84 days before trial.

[13] In cases such as this one, the adjuster or adjusters have duties of investigation on behalf of both the plaintiff and the defendants; there must, almost of necessity, be an initial period of adjusting or investigating to discover the factual matrix within which the adjusters will perform their duties and assess the file and the claims or roles of the interested parties. Absent such period and process of investigation the adjuster can have no reasonable basis upon which to conclude that there is a reasonable prospect of litigation and that all or part of what is done from any given point in time forward is done for the dominant purpose of litigation. In this regard see Hamalainen (Committee of) v. Sippola (1991) 62 BCLR (2d) 254 (BCCA).

[14] These engineers were approached within the first 3 weeks following the collision, clearly within the period of initial investigation and was even seen by at least one of the adjusters as being used for purposes of handling the file short of litigation. The investigative material, notes, correspondence and other such recordings of the engineers were not created at a time when litigation was a reasonable prospect; neither were they created for the dominant purpose of litigation. The fact that counsel has now requested an expert report from MEA does nothing to change that any more than a request to a G.P. or plaintiff’s medical expert that he or she provide an expert report renders that practitioner’s clinical records privileged.

[15] The MEA investigative material, notes, correspondence and working papers which arose between August 9, 2007 and September 13, 2007 inclusive are not subject to a valid claim of litigation privilege; they are ordered to be listed and to be produced to plaintiff’s counsel within 14 days. If there are any other MEA materials which arose between September 14, 2007 and the date when defence counsel commissioned their expert report, those are to be listed with the required clarity, date and description in order that any further claim of litigation privilege can be properly assessed.





More on Document Disclosure: Hard Drives, Phone and Banking Records


(Note: I’m informed that the case discussed in the below post is under appeal.  When the appellate decision comes to my attention I will update this post)
As previously discussed, one of the areas being worked out by the BC Supreme Court is the extent of document production obligations in personal injury lawsuits under the New Rules of Court.  Further reasons for judgement addressing this subject were recently brought to my attention.
In the recent (unreported) case of Shackelford v. Sweeney the Plaintiff was injured in a 2009 motor vehicle collision.  He alleged serious injuries including a head injury with resulting cognitive difficulties.  The Plaintiff was a successful self-employed recruiter and his claim included potentially significant damages for diminished earning capacity.
In the course of the lawsuit ICBC applied for various records supposedly to investigate the income loss claim including production of the Plaintiff’s computer hard-drive, phone records and banking records.  The application was partially successful with Master Taylor providing the following reasons addressing these requests:
[7]  In relation to the cellphone records, the plaintiff gave evidence at his examination for discovery that he conducted most of his business over the telephone or the Internet, and he rarely met with people, and therefore it is suggested that the cell phone records relating to his business are probative.  I agree that they can be probative, but I do not believe that the actual phone numbers themselves would be probative in any particular method or way.  What is probative is how much the plaintiff used his phone on a daily or weekly basis to conduct his business
[8]  Accordingly, I am going to order that the cellphone records that relate to his business, from January 1, 2007, to the present date, be produced, but in all circumstances every phone number but the area code is to be redacted….
[13]  The Defendants also seek an order that the plaintiff produce the hard drive from the laptop he was using when he was operating (his recruiting business)…
[17]  …As there is an ongoing obligation by the Plaintiff to produce all business records in relation to this claim, I say that the obligation continues with respect to the hard drive that exists, and that the plaintiff has the obligation to examine the hard drive himself and/or with counsel, and extract any of his business records from there and provide them to the defendants.
[18]  If the Plaintiff requires the services of a technician to assist in that regard, then the cost of that will be borne by the defendants.  Once the business records have been extracted and redacted for privacy concerns, those documents will be henceforth provided to the defendants within 14 days thereafter…
[21]  I think that only leaves bank statements relating to business income.  I think the plaintiff has a positive obligation to provide some information with respect to his income, showing his income being deposited into his bank account.  Where that in the bank statements shows, it should be left unredacted, but where it shows anything related to his wife or private unrelated business purchases , those may also be redacted.
This case is worth reviewing in full for other matters such as a declined request for production of the Plaintiff’s passport and client names.
At this time this case is unreported however, as always, I’m happy to e-mail a copy to anyone who contacts me and requests the reasons for judgement.

Getting to Peruvian Guano

Yesterday morning I was teaching as a guest instructor at PLTC (the BC Bar Exam Course) overseeing a Courtroom skills exercise.  During the mock court application I asked the soon to be lawyers under what circumstances the Pervuian Guano test applied for document production.  Little did I know my  question was being answered just across town by Master Bouck who released reasons for judgement addressing this topic at length.
As previously discussed, the New BC Supreme Court Rules replaced the Peruvian Guano test for document production with the narrower test of documents that “prove or disprove a material fact”.  However, the rules allow for the Peruvian Guano test to kick in through the second tier of document production set out in Rules 7-1(11),(12) and (13).  Master Bouck addressed exactly what’s necessary to get to the Peruvian Guano stage.
In yesterday’s case (Przybysz v. Crowe) the Plaintiff was injured in a motor vehicle collision.  ICBC’s lawyer brought an application for the production of various records.  The application was largely unsuccessful however before dismissing it the Court provided the following useful feedback about the requirements necessary to get to the Peruvian Guano stage of document disclosure:

[27] …this application is, in fact, brought pursuant to Rules 7-1(11), (12) and (13). Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a) Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: seeRules 7-1(1) (d), (e) and (f).

[29] The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.

[30] As to the form and substance of the request, it has been suggested by Master Baker that:

… there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court … with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed” …

Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at para. 4

[31] A similar higher duty or burden rests with the party rejecting the request under Rule 7-1(12): see Conduct of Civil Litigation in B.C (2nd edition), Fraser, Horn & Griffin @ p. 17-7. In my view, the burden is not met by stating that documents will not be produced simply because of the introduction of the SCCR.

[32] The objective of proportionality might also influence the timing of requests for broader document disclosure. The court has observed in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, that under the SCCR:

… the duty to answer questions on discovery [is] apparently broader than the duty to disclose documents.

para. 7.

And further:

… if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence.

para. 8.

[33] Nevertheless, neither the court nor the SCCR require that an examination for discovery precede an application under Rules 7-1(13) and (14). Depending on the case, proportionality and the existing evidence might support pre-examination document disclosure so that the examination can be conducted in an efficient and effective manner….

[40] It is suggested by the learned authors of Conduct of Civil Litigation in B.C. that authorities decided under former Rule 26(11) may be applicable to an application for broader disclosure of documents under Rules 7-1(11) – (14): p. 17-7. That suggestion is not inconsistent with Master Baker’s ruling. Again, the questions for the court will be what evidence is presented and does an order for production achieve the objective of proportionality?

Master Bouck also released a second set of reasons (Baldertson v. Aspin) with this further useful feedback of the intent of Rule 7-1(11):

[29] The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. TheRule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application. Whether this debate or discussion was had verbally in this case is not clear on the record.

[30] Nor does it appear that any written request was made to the plaintiff to list documents relating to the 2001 motor vehicle accident. Again, the Rules appear to have been ignored as a matter of expediency.

[31] Nevertheless, the plaintiff did not seek an adjournment of the application so that the process under Rules 7-1(10), (11) and (12) could be followed. The parties proceeded on the basis that the plaintiff declined the defence’s requests for additional document disclosure and/or the listing of those additional documents. In this particular case, the objectives of the SCCR are met by dealing with the merits of the application rather than rejecting the application on procedural grounds.

More on Document Disclosure and the New Rules of Court: MSP and Pharmanet Printouts


As previously discussed, the New Rules of Court have limited the scope of pre-trial document production and further have introduced the concept of ‘proportionality‘ in deciding what types of documents need to be disclosed in litigation.  The law continues to develop with respect to the application of these changes and recently the BC Supreme Court released reasons for judgement addressing two classes of documents which are often requested in BC personal injury lawsuits; MSP and Pharmanet Printouts.
In the recent case (Anderson v. Kauhane and Roome) the Plaintiff was injured in a 2008 BC motor vehicle collision.  She sued for damages.  In the course of the lawsuit the Defendant requested her MSP and Pharmanet printouts (government documents which keep track of doctors visits and prescption drug purchases).  These documents were routinely produced in injury lawsuits under the former Supreme Court Rules.
The Plaintiff opposed arguing that the narrower scope of the New Civil Rules no longer made such documents automatically producible.  Master Baker agreed and dismissed the Defence application for production.  In doing so the Court considered disclosure of these documents both under that narrower ‘material fact’ test in Rule 7-1(1)(a) and the broader Peruvian Guano type disclosure under rule 7-1(11).  In dismissing the application Master Baker provided the following useful reasons:
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available?  I think not….I am not satisfied that at this juncture they can or will prove a material fact…
I acknowledge that the defence has pleaded – and I will say this – in what I think are now becoming boilerplate pleadings, has pleaded pre-existing conditions…I am not satisfied that, by simple pleading, that somehow opens up the matter to the higher standard represented by 7-1(11).  The obligation is still on the defendant to make that case, as far as I am concerned, and that moves me to the second aspect of this, has a case been made under 7-1(11)?
Has there been, in other words, reasonable specificity indicating why the additional documents or classes of documents should be disclosed?  I think not….It seems, in the circumstances, disproportionate to me to give an open-ended order that all Pharmanet records, for example, some seven years, or records with Medical Services Plan going back to January 1, 2004, are proportionate to the claim as it is expressed and understood at this point.  So the application is dismissed.
As far as I am aware this recent case is unpublished but, as always, I am happy to provide a copy of the reasons to anyone who contacts me to request one.

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ERIK
MAGRAKEN

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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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