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:
  • medical records are not actually "single documents", but rather "a series of records compiled over time from a number of interactions with the plaintiff" and "[e]ach entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action" (citing Hyvarinen v. Burdett);
  • because medical records are not a single document, "there can be no presumption that the entirety of such records should be produced";
  • where "there is uncontroverted evidence that parts of the records relate to something that does not on its face touch on the matters at issue, and ... those parts of the records are irrelevant and would be embarrassing if produced, the [demanding party] must do more than simply assert that all medical records must be relevant given the pleadings";
  • the demanding party must "bring some evidence to support either his application that the redactions would prove or disprove a material fact or that a broader class of documents should be disclosed".  The party must "demonstrate a connection beyond a “mere possibility”" and establish "some “air of reality” between the documents and the issues in the action"; and
  • a possible source for this evidence is an examination for discovery since, "although the scope of document production has narrowed under the new rules, the scope of examination for discovery is unchanged and very broad."
There are two things to note about this decision.

First, this is clearly a personal injury case and the decision is focused on medical records.  How these principles will be applied to commercial cases remains to be seen.  However, the propositions that multiple records contained in a single document are in fact separate documents, and that compelling evidence is needed to order production of documents which are not prima facie relevant and which invoke privacy concerns, should find purchase in commercial situations.

Second, an issue may be taken with the court's reference to oral discoveries as a way to obtain evidence for an application for further production of documents.  True, the new Rules do not restrict the breadth of discovery.  However, they do severely restrict the timing of same.  What the Master did not address in this decision is whether it is truly consistent with the proportionality principles to force a party to dedicate a portion of its limited discovery time to document production issues.