Monday, 16 April 2012

Redaction of Listed Documents Under the New Rules

In a not uncommon situation, a party receives a list of documents produced under R. 7-1(1) or 7-1(12), requests copies of listed documents, and then discovers that portions of documents have been redacted for purported reasons such as "relevance", "confidentiality", "privacy", etc.  However, as there is no provision for redaction of documents under R. 7-1, what can/should be done about such redactions?  The decision of Master MacNaughton in 0878357 B.C. Ltd. v. Tse, 2012 BCSC 516, provides some welcome guidance and confirms that, without a court order to the contrary, the entire document must be produced.

In Tse - an action brought by a purchaser for specific performance of a real estate transaction, the purchaser sought to redact "for relevance" a portion of a document that dealt with who provided the funds for the subject transaction.  Before "New Rules", the guiding principle was established in North American Trust Co. v. Mercer International Inc. (1999), 71 B.C.L.R.(3d) 72 at para. 13 (S.C.), where Lowry. J. (as he then was), held as follows:
Under the rules of this court, a litigant cannot avoid producing a document in its entirety simply because some parts of it may not be relevant. The whole of the document is producible if a part of it relates to a matter in question. But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purpose in resolving the issues.
The purchaser, however, argued that this principle "was decided under the broader initial disclosure required by the prior Rules and that the test for redaction should be modified to reflect the new, and narrower, disclosure contemplated under Rule 7-1(1)", and that the principle should only remain applicable to broader disclosure under R. 7-1(11).

Master MacNaughton disagreed, finding that the North American principle - which required production of a full document absent a court order to the contrary - remains applicable, including to R. 7-1(1), albeit properly modified for the reduced scope of production under this rule:
[27]         I am satisfied that the general principals[sic] set out in North American Trust continue to govern the court’s decision making with respect to redacted documents.  That general principal[sic] requires production of complete documents.  However, at this first tier of disclosure, the principle should be modified to reflect the now narrower disclosure requirements in the SCCR.

[28]         The requirement that a document be one which may prove or disprove a material fact relates to the decision to first list it. Once listed, the whole of the document is producible if a part of it might prove or disprove a material fact. Having listed document 1.39 as one that goes to prove or disprove a material fact, absent agreement or a court order, the whole of the document should be produced. Redaction will only be permitted in exception circumstances, and where there is good reason to permit it, if the redacted portion does not go to prove or disprove a material fact.  [emphasis added]
So, next time you receive a redacted document, you may want to mention this decision to the opposing side.