Wednesday, 1 August 2012

Production of Redacted Records - Evidentiary Threshold

Whether or not to redact a document or a record is a question that often vexes counsel producing documents as Rule 7-1 is silent on this issue.  On the receiving side, counsel are often forced to decide whether to oppose redaction in the absence of information about what exactly has been redacted and relying solely on the description provided by the producing counsel.  While some judicial guidance had been provided in the past, it was mostly in the context of the Old Rules and, therefore, is of questionable applicability to the new Rules espousing proportionality and two-stage production.  Fortunately, a comprehensive decision of the recently appointed Master Muir in Hadani v. Hadani, 2012 BCSC 1142, which skillfully argued by my colleague Jennifer Loeb on behalf of the plaintiff, provides some useful guidance. 

At issue in Hadani was redaction of medical records to remove portions that concerned injuries and medical conditions not in issue in this proceeding and the disclosure of which would cause embarrassment to the plaintiff.  The Master dismissed the defendant's application for production of unredacted records, finding that the defendant had failed to adduce any evidence that would demonstrate that the redacted portions were actually reasonably connected to any issues in the the proceeding.  In particular, the Master held as follows: