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Procedural Fairness

By Michael Frisch

The Ontario Law Society Tribunal Division has rejected an attorney’s contention that discovery provided electronically in connection with seven complaints violated his rights

 The Lawyer submitted that the Law Society had not adhered to its procedural fairness obligations and that he was entitled to “accessible” disclosure. He submitted that the documents were in no particular order, could not be searched, were not indexed and that the disclosure contained duplicates. He remained vague, however, as to what would constitute accessible disclosure. For example, he referenced a schedule filed by the Law Society in an unrelated civil action, which lists the documents in its possession that it does not object to producing for inspection. The list includes the date of each document along with a brief description of the document. While referencing this schedule, the Lawyer did not argue that such a format would satisfy him.

 The Law Society submitted that the volume of disclosure was to be expected given that the disclosure is in relation to seven separate investigations. Nevertheless, unlike Cuffie, this was a case of thousands rather than millions of pages of documents. Furthermore, the Law Society submitted that the documents were highly organized, separated by investigation number, bookmarked and sub-bookmarked with descriptions of the documents in a way that allows for easy access. Additionally, the documents were searchable without the need for any additional software application.

Conclusion

I conclude that the Law Society has fulfilled its disclosure obligation and provided the Lawyer with meaningful and accessible disclosure.
 
While the total number of pages is significant – 4599 pages plus the materials found in the folder labelled “Items That Can’t be Rolled up” – it is not overly burdensome. As submitted by the Law Society, this is not a case of millions of documents. Furthermore, the documents are organized in seven different roll ups, each representing a separate investigation. Only one of the roll ups contains more than 1000 pages.
 
Each roll up is in turn organized in accordance with a table of contents. There are bookmarks and sub-bookmarks describing the documents. The Lawyer consistently referenced the need for an index. The disclosure has such an index with multiple subheadings and descriptions. The Lawyer failed to explain what more is required given these multiple description headings. Furthermore, two of the roll ups include the two investigation reports covering all seven investigations along with an EKEB containing the evidence that the investigators considered to be key to the allegations.
 
Finally, optical character recognition was applied to each of the roll ups such that they are searchable by word or phrase. While the Lawyer made vague arguments that the documents could not be searched, he failed to provide any persuasive evidence of such.
 
I fail to see how much more organization would be required to satisfy the Lawyer. He has already been provided with disclosure in an accessible and organized format. I dismiss his motion.
 
(Mike Frisch)

Posted in:
Bar Discipline & Process