E-discovery: Can the Clients Afford It?

The traditional rule in common law provinces is that that the producing party is responsible for the immediate costs of the production of its documents to the other party. While British Columbia does expressly address the costs of electronic discovery, in Ontario, Rule 1.03(1) provides that the Rules of Civil Procedure shall be liberally construed to secure “the just, most expeditious and least expensive determination of every civil proceeding on its merits”. The cost of documentary discovery under the present regime may easily overwhelm the amount at issue in the litigation. One legal writer has called this the perfect storm.

Cost-shifting in Canada occurs at the end of the litigation, at which time the unsuccessful party may be required to contribute, in whole or in part, toward the costs, including fees and disbursements, of the successful party. These loser-pays rules are not present in the United States, where cost-shifting is frequently used.

For the full article from sla.com click here.