Inventory of Reforms

a. Reduced scope of document production (Rule 7-1)

The Civil Justice Reform Working Group (CJRWG) concluded that excessive document production is responsible for much of the delay and expense in civil litigation. They determined that the 19th century "Peruvian Guano" case that allows for the discovery of indirectly relevant evidence is no longer workable in the context of proliferating electronic information and the increasing complexity of modern litigation. The case is no longer followed in the UK, where it originated.

The new rules provide that parties only disclose those documents that could be used to prove or disprove a material fact at trial and any other documents that a party intends to refer to at trial. Parties may seek an order to obtain additional documents if warranted.

b. Limits on oral examinations for discovery (Rule 7-2)

Another significant cost factor in today's litigation is excessive oral examinations for discovery, as the current rules place no limits on the examiner. The Honourable Chief Justice (as he then was) Allan McEachern, stated that oral examinations for discovery can be "a procedure of oppression" and that "often transcripts of interminable examinations for discovery are never looked at during the trial." He said that the expense of oral discovery must be reduced if we are to "survive the dangerous escalation of costs of the trial process."

The original concept draft of the new rules provided that no party would be subjected to more than three hours of questioning in discovery by all other parties, without consent or court order. Concern was expressed in the consultations that the total of three hours by all parties combined was insufficient. As a result, the new rules set a maximum (absent consent) of seven hours for each party conducting an examination for discovery. This provides for a reasonable amount of oral discovery, without allowing days upon days of questioning.

An informal process that sometime occurs in an examination for discovery is that the deponent does not know the answer to a question, but agrees to inform himself or herself and then provide the answer. Rather than appear at a subsequent examination for discovery, however, counsel frequently agree to have the new information sent to the requesting party. The new rules have formalized this process by allowing a letter answering the questions to be deemed to be questions and answers given under oath in the exam for discovery. (Rule 7-2 (23) and (24))

c. Interrogatories (Rule 7-3)

Interrogatories under the new rules are only allowed with consent or leave of court.

d. Witness lists (Rule 7-4)

The rules require the parties to exchange witness lists at least 28 days before trial or as set in a case plan order.