Last week we looked at the defendants disclosure obligations regarding surveillance and investigative material where a claim of privilege has been made, in this weeks post we will look into using surveillance at the examination for discovery, after discovers and before trial.
II) At the Examination for Discovery
In order to obtain the particulars of surveillance before the plaintiff’s discovery, the plaintiff should endeavor to be the first to deliver a notice of examination. By doing so, the plaintiff can take advantage of Rule 31.04(3). This rule states that the party who first serves a notice of examination “may examination first and complete the examination before being examined by another party, unless the court orders otherwise”. Read more of this article »
This is Part 1 of a 3 part series on how to best leverage the use of surveillance and investigation in court through a plaintiff’s perspective.
Surveillance of an injured plaintiff is a common tactic used by defense counsel to defend personal injury actions. More recently, in addition to traditional video surveillance, on-line investigations are now being conducted of plaintiffs. Surveillance and on-line investigation is conducted at a variety of times throughout the litigation and it is impossible for a plaintiff’s lawyer to predict exactly when it will be done. This blog will discuss the defendant’s pre-trial disclosure obligations as it relates to video surveillance and on-line investigation, the use of this material at trial and helpful strategies plaintiff’s counsel can employ to obtain the particulars of this investigative material in advance of trial.
DISCLOSURE OF SURVEILLANCE
Below is a discussion of the defendant’s disclosure obligations regarding surveillance and investigative material where a claim of privilege has been made.
I) Before examinations for discovery
The term “document” is defined broadly by Rule 30.01 of the Rules of Civil Procedure to include “a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form”. As a result, the rules governing disclosure and production of documents apply equally to surveillance and investigative material.
Rule 30.02(1) requires a party to disclose “every document relevant to any matter in issue in an action…whether or not privileged is claimed in respect of the document.” Rule 30.02(2) imposes a further requirement that all relevant documents be produced unless privileged is claimed over the document.
Rule 30.03 requires every party to an action to serve an affidavit of documents disclosing “to the full extent of the party’s knowledge, information, and belief” all documents that are (a) relevant to any matter in issue in the action and (b) are or have been in the party’s possession, control or power. Any investigative reports and surveillance obtained before discovery must be disclosed in the defendant’s affidavit of documents. In most cases, the defendant will claim privilege over these documents, such that they must be listed in Schedule “B”.
To learn if surveillance or on-line investigation has been undertaken before discovery, a plaintiff should always require a defendant to deliver a sworn and certified affidavit of documents, or at a minimum, a draft affidavit of documents, in advance of examinations for discovery. Sometimes a defendant will use boiler plate wording to set out the documents under Schedule “B”. If there is any concern over what may be contained in Schedule “B”, counsel may insist on a particularized Schedule “B”, with a list and description of every document together with the grounds for the claim of privilege.
As internet investigation of the plaintiff is now being conducted by the defendant, counsel should be aware that the disclosure obligations under the Rules above include any electronic documentation, including those obtained from the internet. While an investigator’s report which may accompany this material would satisfy a claim for privilege, the actual documents obtained (ie. photographs from Facebook or postings from twitter) ought to be listed in Schedule “A”, as these documents would not satisfy the elements to establish litigation privilege. In Leduc v. Roman, the court clearly held that online content is “data and information in electronic form” producible as “documents” under the Rules. As a result, relevant documents obtained from the internet must be identified in the defendant’s affidavit of documents.
Come back next week when we discuss “At the Examination for Discovery”
  CanLII 6838 (Ont.S.C.)
This morning McLeish Orlando announced their donation of 500 turkeys to help the Daily Bread Food Bank and their mission to fight against hunger here in our city.
Follow @DailyBreadTO to learn more about the fight against hunger and tune into City TV
John McLeish and Patrick Brown with Frankie Ferragine, Breakfast Television
John McLeish, Alison Burrison, Gail Nyberg, ED, Daily Bread Food Bank and Patrick Brown
McLeish Orlando would like to wish everyone a safe and happy holiday season and best wishes for 2014.
The lawyers and staff at McLeish Orlando would like to wish everyone a safe and happy holiday season and best wishes for 2014.
Running an efficient and effective office includes limiting the number of cases individual lawyers take on so that every client gets the attention they deserve, Toronto critical injury lawyer John McLeish says in Lawyers Weekly.
The entire article can be found on advocatedaily.com click here.
By: Dale Orlando, McLeish Orlando LLP
Published in: Insurance Lawyer Magazine
on October 13, 2013
In a court action for damages arising out of an injury, judges and juries will rely upon the opinions of health professionals in order to understand and interpret the facts of a plaintiff’s claim. However, many health professionals are understandably hesitant to express their opinions within this context. This article is intended to assist health professionals in this regard, through a discussion of what a health professional may expect and how best to prepare, if called to appear as a witness at trial.
The scope of the expert’s testimony
When an expert takes the stand at trial, he or she will not be narrowly confined and limited to the precise content of his or her report, which would have been delivered pursuant to theEvidence Act. A medical expert has a right to explain, amplify and expand on what is latent in the medical report – so long as they are not opening a new field. The purpose of the rule is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Read more of this article »
As seen on AdvocateDaily.com
Making use of technology ensures efficiency and productivity remain at peak levels, even during time periods that may otherwise be wasted, Toronto critical injury lawyer John McLeish says in Lawyers Weekly.
In an article discussing working on the go, McLeish says if he’s travelling, he always has a laptop in tow.
If stuck on a plane for three hours without the ability to connect remotely, because the firm has a paperless office, files can easily be downloaded, says McLeish.
“Instead of having two briefcases in the overhead luggage compartment above me, I have a 2.8-pound computer. I can download five, 10 or 25 files so I have them on the plane,” McLeish, a partner with McLeish Orlando LLP, says in the article.
The firm makes use of today’s latest technology, including Primafact, a paperless office system that enables lawyers to instantly access any document in a client’s file, the article says.
“There’s no running around saying, ‘Get me this document.’ We can access everything so quickly,” says McLeish.
When on a trip, McLeish says he’ll often get work done in the lobby of his hotel in the early morning hours.
For more information about McLeish Orlando click here
With the arrival of the fall season fast approaching, days are shorter, leaving numerous cyclists caught in the dark on their commute home from work. Cycling at night is a dangerous time to bike due to poor visibility. Without lights, cyclists become invisible to motor vehicles.
The McLeish Orlando team took to the Toronto streets last night to promote Cycle Toronto’s Get Lit! campaign. The campaign is aimed towards educating the public on safe cycling at night. Under Ontario law, cyclists must have a rear red light or reflector and a front white light shining thirty minutes before sundown and thirty minutes before sunrise. Read more of this article »
As seen on AdvocateDaily.com
A controlled glimpse into the juror process would be beneficial to counsel handling civil cases, Toronto critical injury lawyer John McLeish tells Lawyers Weekly.
In the social media age, Canadian jurors and the legal community at large are divided on whether they can legally discuss the process, their deliberations, and their verdict in civil trials, the article says.
The Criminal Code makes it clear that jurors cannot discuss cases during the trial or after a verdict has been rendered, but when it comes to civil cases, Lawyers Weekly reports, several provinces are mute on the issue. Read more of this article »
McLeish Orlando Supports BIST 5k Run, Walk and Roll and SCIO Wheelchair Relay Challenge
This past weekend, McLeish Orlando staff, family and friends came out to support two very important causes in our community. In spite of the rain on Saturday, there were close to 300 participants who finished the race for the 3rd Annual BIST 5K Run.
McLeish Orlando participated as part of The Personal Injury Alliance with a team of close to a hundred staff and supporters.
Through sponsorship, fundraising and registration, BIST generated over $50,000 that will go a long way in supporting programs, services and efforts to raise brain injury awareness.
The Brain Injury Society of Toronto supports brain injury survivors and family members. BIST aims to enhance the quality of life for people in the City of Toronto, living with the effects of brain injury through education, awareness, support and advocacy.
Photos from bist.ca- Click the photo to enlarge
As part of our weekend of giving back, on Sunday we participated in Spinal Cord Injury Ontario’s Wheelchair Relay Challenge held at Ontario Place. Read more of this article »