On February 13, 2008, the Supreme Court of Prince Edward Island (Trial Division) struck a statement of defence as a sanction for non-production. The judgement is notable for its strong statements in favour of full-production despite burden and despite any assignment of particular value to the evidence sought. However, the defendant’s ability to raise proportionality was limited by a number of factors, including that the burden of production appeared to have been caused by a failure to take reasonable preservation steps (i.e. there was a so-called “downgrading” of data). The defendant also raised the burden of production late in the dispute in response a contempt motion.
Thanks again to Peg Duncan for passing this on. Peg edits the case digests on LexUM’s e-Discovery Canada site. Please check them out!
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Case Report - Appeal court restores defence struck as a remedy for spoliation « All About Information // February 19, 2009 at 10:35 pm
[...] On February 13th the Prince Edward Island Court of Appeal held that a motions judge erred in striking a statement of defence as a sanction for non-production. The Court suggested that such a strong [...]