When parties enter into the litigation process, one of the steps that must be undertaken is document exchange, or disclosure, commonly referred to as discovery. The discovery process requires each party disclose to the other all documents that they have in their possession that are relevant or related to the proceedings by listing them documents in an Affidavit of Documents. Each party is then required to produce to the opposing side all relevant documents listed in the Affidavit of Documents, except those that may be lawfully withheld. This process is governed by Part 5 of the King’s Bench Rules [the Rules] and outlines what is required of each party when disclosing documentary evidence.
One of the issues that can arise during the disclosure process is that a party may be in possession of relevant documents—whose existence must be disclosed to the other side—but which contain parts that are not relevant and/or contain sensitive information. The party in possession of such a document will often attempt to redact the irrelevant or sensitive information from the document before producing it to the opposing side.
Redacting documents can become the source of further dispute between parties. Until recently, in Saskatchewan, there was no clear test as to what constituted a justifiable reason for making a redaction to an otherwise producible document. That changed on October 11, 2022, when the Court of Appeal for Saskatchewan released its decision Omorogbe v Saskatchewan Power Corporation, 2022 SKCA 116 [Omorogbe]. This case significantly raised the bar that lawyers and their clients must meet in order to justify redacting portions of otherwise producible documents.
Background of the Decision
An employee (who had previously been terminated from his employment) issued a claim against his former employer for knowingly and maliciously launching an unsubstantiated criminal investigation against him. In the documents produced during the discovery process, the employer redacted the name of another employee who had been emailing about the Plaintiff’s potential involvement in criminal activity. The Plaintiff objected to the redaction, claiming he was entitled to know which of his former colleagues had been emailing about his alleged criminal activity. The Court of King’s Bench upheld the employer’s redactions. The dismissed employee appealed the decision.
Court of Appeal Decision
The Court found that a party seeking to justify a redaction from a producible document must show that:
(a) The information removed from the document is not relevant to an issue in the action;
(b) There is, in the evidence or record, a compelling reason for the redaction; and
(c) The existing protections provided for in the Rules, and as may be supplemented by other measures, are insufficient to protect the interest that is said to justify the redaction.
After outlining this new test, the Court went on to provide litigants with further guidance on the correct procedure to follow where a party seeks to unilaterally redact information in an otherwise producible document, and the opposing party objects to the redaction. The procedure is as follows:
- The redacting party must list both the redacted and unredacted versions of the document in their Affidavit of Documents.
- The redacting party must list the document in its redacted form in Schedule 1 of the Affidavit of Documents. Schedule 1 to the Affidavit of Documents is the list of documents for which there is no objection to produce.
- The redacting party must also list the document in its unredacted form in Schedule 2 of the Affidavit of Documents. Schedule 2 of the Affidavit of Documents is the list of documents for which there is an objection to produce.
- The redacting party should also set out in Schedule 2 the basis upon which they claim the right to withhold production of the unredacted version of the document.
- Finally, if, after receiving the Affidavit of Documents from the redacting party, the other party wishes to dispute the redaction, that party may make an application under Rule 5-12 on the basis that the redacting party has not met their obligation to make full and proper disclosure and production of documents. If the Court finds that the redacting party has not established each part of the three-part test outlined above, the Court may direct the redacting party to provide the other side with the unredacted version.
In Omorogbe, the dismissed employee’s appeal was allowed. The Court of Appeal found that the former employer had not met the test outlined above. Therefore, the former employer was required to provide the unredacted document, which contained the name of the emailing employee, to the dismissed employee.
This decision clearly alters the way in which litigants can go about redacting their documents during the disclosure process. It creates an extremely high bar for a party to surpass if they feel that certain information in a producible document needs to be withheld from the other party. Given that the privacy and potentially the safety of the emailing employee in Omorogbe was not justification enough to protect the employee’s identity from the dismissed employee, this raises the question: what would then meet this standard?
McDougall Gauley has extensive experience in complex civil and commercial litigation. To learn more about how this ruling may affect your interests and right to redact confidential or sensitive commercial information during the civil litigation process, please contact a member of our Litigation, Dispute Resolution & Appeals team.
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