Date: 2002-09-27. Docket: 98-CV-158832. Cumming J. | Link

Class action for persons who allegedly became seriously ill, or in some cases, died, due to the defendant’s diet drugs. Justice Cumming emphasized that he was unhappy with the defendants’ uncooperative behavior throughout the discovery process: “In contrast with other features of the civil litigation process in Ontario, the discovery of documents operates through a unilateral obligation on the part of each party to disclose all relevant documents that are not subject to privilege. The avowed approach of the defendants’ counsel is contrary to the very spirit of this important stage of the litigation process.” The defendants initially took the position that the CDs and electronic data base prepared for themselves in respect of their own documents (to organize the documents disclosed in their affidavits) were not to be shared with the plaintiff. The defendants later agreed to provide an index, but the plaintiff asserted that the 100,000 documents (containing 500,000 pages) were not searchable and that this form of documentation does not provide meaningful access. In response to an earlier motion, the Court ordered the defendants to provide the plaintiff with the objective fields of their electronic database relating to their production. The court found that “production implied meaningful access and that if any electronic mechanism to facilitate access was available it should be obtainable by the plaintiff”. The plaintiff also seeks access to the defendant’s productions in its US product liability litigation regarding the same diet drugs. The court found that the plaintiff should have access to the US productions inasmuch as the production is prima facie relevant to the Canadian litigation.