Date: 2013-10-10. Docket: S/C/101/11. Glennie, J. | Link

The plaintiffs allege that the defendants used the plaintiff’s confidential information to create a loyalty program. The plaintiffs brought a motion for a further and better affidavit of documents, including all relevant emails for a time period of almost three years. The defendants argued that it is not proportional to produce the archived mails. It would cost $1.2 million to retrieve the emails of 13 employees and $3.4 million for 33 employees. The court found that the plaintiffs’ request is too broad and based on speculation, rather than evidence that any particular document has not been disclosed. “In my opinion, the burden, cost, and delay of the production must be balanced against the probability of yielding unique information that is valuable to the determination of the issues.  Counsel for the plaintiffs made reference to a possible “smoking gun” that could exist in one of many e-mails authored by Scotiabank employees.  This is way too speculative.” In reaching its decision, the court considered not only proportionality, but also the fact that the plaintiffs had already set the matter down for trial and confirmed that all pre-trial procedures had been completed. The court ordered the defendants to provide all relevant emails of only four employees, and limited the time period to just over one month.