Proposed Amendment to Rule 26

The Supreme Court Rules Revision Committee continues its consideration of the problems created by Peruvian Guano. It is believed that the test for producibility is too broad and that the volume of documents disclosed has become overly burdensome, both to the party giving production and to the party receiving production. There is a consensus on the Committee that change is needed and that Rule 26 ought to be amended.

The Committee will not reach a conclusion on this question before the end of the Rule 68 pilot project on September 2, 2007. The solution to the Peruvian Guano problem may be found in that pilot project. Due to the importance of the issue to litigants, we hope for continuing input from the bar.

Some members of the Committee believe that more fundamental change than Rule 68 provides is required. They have prepared a draft rule to replace Rule 26. If adopted, this new rule would provide for:

1. mandatory disclosure of only those documents which the disclosing party intends to put in evidence;
2. ad hoc court-ordered disclosure of other documents only where the party seeking disclosure can demonstrate that another person may reasonably be expected to have documents which would be admissible to prove or disprove a fact in issue; and
3. Peruvian Guano disclosure only where the party seeking such disclosure can satisfy the court that such disclosure is appropriate in a particular case.

At the conclusion of the Rule 68 pilot project, the Committee will consider all of the options and comments presented to it and will make a recommendation to the Attorney General. All members of the bar are encouraged to send written comments to the Committee, care of Ms. Judith Hoffman, Secretary, Rules Revision Committee, the Supreme Court of B.C., 800 Smithe Street, Vancouver, B.C. V6Z 2E1.

This article was published in the June 2005 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2005, all rights reserved.