Date: 2013-07-16. Docket: 12-53627. Master Macleod. | Link

This decision relates to a motion for further and better affidavits of documents. The underlying dispute concerns the early termination of a commercial lease. The defendant, a manufacturer, importer and retailer of clothing, rented a 5,000 square foot commercial space from the landlord. The parties had a 10 year lease, and subsequently entered into three rental deferral agreements. These deferral agreements allowed the tenant to pay only 50% of the minimum monthly rent, which was then to be added and repaid in the second half of the lease. The plaintiff agreed to undertake best efforts to find a replacement tenant. The tenant subsequently went into default and abandoned the premises. The landlord seeks the balance owing under the lease, while the defendant claims that the landlord failed to use its best efforts to find an alternative tenant. Both parties seek broader disclosure of commercially sensitive information - the financial statements of the defendant (not just for the store in question) and the entire rent roll of the plaintiff. The court found that the information sought by both parties is relevant to the issues in dispute and ordered each party to make more complete disclosure. Master Macleod noted that there was no evidence by which he could apply a proportionality analysis, but that parties have an ongoing obligation of consultation and may agree on more limited or focused disclosure. “Neither party benefits from over production because both parties must then incur costs in reviewing the documents and of course each will be seeking to recover those costs from the other in the eventual disposition of the litigation.”