Civil Procedure Rules of Nova Scotia  
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Part 5 - Disclosure and Discovery

Rule  14 - Disclosure and Discovery in General

Meaning of “relevant” in Part 5
14.01 (1) In this Part, “relevant” and “relevancy” have the same meaning as at the trial of an action or on the hearing of an application and, for greater clarity, both of the following apply on a determination of relevancy under this Part:
   
(a)
a judge who determines the relevancy of a document, electronic information, or other thing sought to be disclosed or produced must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant;
   
(b)
a judge who determines the relevancy of information called for by a question asked in accordance with this Part 5 must make the determination by assessing whether a judge presiding at the trial or hearing of the proceeding would find the information relevant or irrelevant.
  (2) A determination of relevancy or irrelevancy under this Part is not binding at the trial of an action, or on the hearing of an application.
       
Interpretation in Part 5
14.02 (1) In Part 5,
    “actually possess” means to have physical control of a thing or the ability to take physical control of the thing by one’s self, through one’s employee, or, in the case of a corporation, through an officer, without the assistance or permission of another person;
    "computer" means a device that can store, read, and present electronic information, whether or not it can also process data, such as a personal computer, personal digital assistant, or fax machine with memory;
    “designated manager” means a person designated by a corporate party under Rule 14.14;
    “document” means a document that is not electronic information, including a print version of electronic information and a non-digital sound recording, video recording, photograph, film, plan, chart, graph, or record;
    “electronic information” means a digital record that is perceived with the assistance of a computer as a text, spreadsheet, image, sound, or other intelligible thing and it includes metadata associated with the record and a record produced by a computer processing data, and all of the following are examples of electronic information:
   
(i)
an e-mail, including an attachment and the metadata in the header fields showing such information as the message’s history and information about a blind copy,
   
(ii)
a word processing file, including the metadata such as metadata showing creation date, modification date, access date, printing information, and the pre-edit data from earlier drafts,
   
(iii)
a sound file including the metadata, such as the date of recording,
   
(iv)
new information to be produced by a database capable of processing its data so as to produce the information;
    “exactly copy” means to make an electronic copy of electronic information in such a way that the copy is a mirror image of the original in a computer, storage medium, or other source;
    “sort” means to do all of the following:
   
(i)
physically separate relevant, non-privileged documents from other documents and distinguish relevant, non-privileged electronic information from other electronic information,
   
(ii)
separate or redact irrelevant or privileged information from a document or electronic information containing some information that is relevant and not privileged,
   
(iii)
place the document or electronic information where it will be preserved for disclosure;
    “storage medium” means a thing on which electronic information is stored other than a computer, such as a digital versatile disc, a backup tape, and a hard drive removed from a computer.
  (2) A Rule in Part 5 that refers to a copy of, or copying, electronic information calls for a copy that is in a readily exchangeable format, unless the Rule refers to an exact copy, a judge directs what format is to be used, or the parties agree on a format.
       
Collateral use
14.03 (1) Nothing in Part 5 diminishes the application of the implied undertaking not to use information disclosed or discovered in a proceeding for a purpose outside the proceeding, without the permission of a judge.
  (2) The implied undertaking extends to each of the following, unless a judge orders otherwise:
   
(a)
documentation used in administering a test, such as test documents supplied to and completed by a psychologist;
   
(b)
all notes and other records of an expert;
   
(c)
anything disclosed or produced for a settlement conference.
       
Relationship between discovery and interrogatories
14.04   A party may only demand an answer to a question under Rule 19 - Interrogatories not already answered by the same witness under Rule 18 - Discovery, and a party may only ask a question at discovery not already answered by the same witness in answer to a demand under Rule 19 - Interrogatories.
       
Privilege
14.05 (1) Nothing in Part 5 requires a person to waive privilege or disclose privileged information.
  (2) A provision in a Rule in Part 5 for disclosure of a relevant document, electronic information, or other thing means disclosure of a relevant document, electronic information, or other thing that is not privileged.
  (3) A provision in a Rule in Part 5 that requires an answer to a question calling for relevant evidence, or information that reasonably could lead to relevant evidence, means relevant evidence that is not privileged, or information, not itself privileged, that could lead to relevant evidence that is not privileged.
  (4) A judge may determine a claim for privilege, except the information and confidences referred to in sections 37 to 39 of the Canada Evidence Act are determined under that Act.
  (5) A judge who is required to determine a claim for privilege may direct a person to deliver the thing claimed to be privileged to the judge in order that it may be dealt with under Rule 85.06, of Rule 85 - Access to Court Records.
       
Disclosure of privileged information by mistake
14.06 (1) Delivery by mistake of privileged information when making disclosure under Part 5 does not extinguish the privilege, unless the mistake results from one of the following:
   
(a)
a system of records management that is ineffective, or otherwise unreasonable;
   
(b)
inadequate security measures for protecting confidential information;
   
(c)
carelessness in disclosure, such as disclosing masses of documents or electronic information without taking reasonable steps to review the documents or making a reasonable search of the electronic information in an attempt to identify privileged information.
  (2) A party who makes disclosure under Part 5 must exercise care to avoid delivering privileged information.
  (3) A party to whom disclosure is made and who discovers that the disclosure includes apparently privileged information must immediately notify the disclosing party and not do any of the things mentioned in Rule 14.06(7) until five days after the day the receiving party notifies the disclosing party.
  (4) A party who learns, by receiving a notice under Rule 14.06(3) or otherwise, that the party delivered privileged information by mistake must, no more than five days after the day the party learns of the disclosure, notify the receiving party of the claim that privileged information was disclosed by mistake, or the privilege is waived.
  (5) A party who claims privileged information was delivered by mistake may require the receiving party to do any of the following:
   
(a)
return the document, if the information is in a physical document;
   
(b)
delete the privileged information, if it was delivered in electronic form;
   
(c)
return the storage medium, if the privileged information was delivered on a storage medium.
  (6) Counsel who receives information claimed to be privileged and to have been delivered by mistake must not provide the information to anyone, including counsel’s client, unless a judge determines the information is not privileged.
  (7) A party who receives information claimed to be privileged and to have been delivered by mistake must not do any of the following, unless a judge determines the information is not privileged:
   
(a)
review the information;
   
(b)
keep a reproduction or record of the information;
   
(c)
communicate the information to another person;
   
(d)
ask a question based on the information in interrogatories, in discovery, on a hearing, or at a trial;
   
(e)
repeat the information.
  (8) A judge may make an order to protect a privilege in anything disclosed by mistake under Part 5.
       
Expense of disclosure
14.07 (1) The party who makes disclosure must pay for the disclosure, unless the parties agree or a judge orders otherwise.
  (2) A judge may order another party to provide an indemnity to the disclosing party for an expense of disclosure, if all of the following apply:
   
(a)
considering the disclosing party’s means, the indemnity is clearly necessary to achieve proportionality within the meaning of Rule 14.08(3);
   
(b)
the expense is not the result of a system of records management that is ineffective, or otherwise unreasonable;
  (3) The order may require the disclosing party to do any of the following, if it is covered by the indemnity:
   
(a)
acquire more information about the disclosing party’s records management system, the location of the party’s documents and electronic information, or how they are accessed, and report to the indemnifying party or the court;
   
(b)
perform a search for relevant documents or electronic information, report on the results to the indemnifying party or the court, and produce a copy of any relevant document or electronic information the party finds;
   
(c)
acquire and produce a copy of a relevant document or electronic information;
   
(d)
take other steps that may assist the indemnifying party to receive disclosure.
  (4) The provisions of an indemnity must be taken into account in the assessment of cost under Rule 14.08(3).
       
Presumption for full disclosure
14.08 (1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice in a proceeding.
  (2) Making full disclosure of documents or electronic information includes taking all reasonable steps to become knowledgeable of what relevant documents or electronic information exist and are in the control of the party, and to preserve the documents and electronic information.
  (3) A party who proposes that a judge modify an obligation to make disclosure must rebut the presumption for disclosure by establishing that the modification is necessary to make cost, burden, and delay proportionate to both of the following:
   
(a)
the likely probative value of evidence that may be found or acquired if the obligation is not limited;
   
(b)
the importance of the issues in the proceeding to the parties.
  (4) The party who seeks to rebut the presumption must fully disclose the party’s knowledge of what evidence is likely to be found or acquired if the disclosure obligation is not limited.
  (5) The presumption for disclosure applies, unless it is rebutted, on a motion under Rule 14.12, Rule 15.07 of Rule 15 - Disclosure of Documents, Rules 16.03 or 16.14 of Rule 16 - Disclosure of Electronic Information, Rule 17.05 of Rule 17 - Disclosure of Other Things, or Rule 18.18 of Rule 18 - Discovery.
  (6) In an application, a judge who determines whether the presumption has been rebutted must consider the nature of the application, whether it is chosen as a flexible alternative to an action, and its potential for a speedier determination of the issues in dispute, when assessing cost, burden, and delay.
       
Demand for production of undisclosed copy
14.09 (1) After the time for making disclosure under Rule 15 - Disclosure of Documents, or Rule 16 - Disclosure of Electronic Information, a party who is satisfied another party has not disclosed a relevant document or electronic information required to be disclosed may demand that the other party deliver a copy of the document or electronic information.
  (2) A party to whom a demand for a copy of a document or electronic information is delivered must respond to the demand in one of the following ways no more than fifteen days after the day the demand is delivered:
   
(a)
accept the demand, and deliver a copy of the document or electronic information;
   
(b)
refuse the demand on the ground that the document or electronic information is privileged, irrelevant, or not in the control of the party;
   
(c)
make a motion to limit the party’s obligation to produce the document or electronic information, and seek to rebut the presumption in favour of disclosure by establishing that compliance with the demand is disproportionate under Rule 14.08.
  (3) A judge may order a party who fails to respond to a demand for production to indemnify the other party for the expenses of obtaining an order for production.
       
Demand for production of, or access to, original
14.10 (1) After the parties have complied with Rule 15 - Disclosure of Documents, and Rule 16 - Disclosure of Electronic Information, a party may deliver to another party a demand for production for inspection of the original of a relevant document in the control of the other party, or for access to relevant electronic information in the control of the other party.
  (2) The party who accepts a demand for production for inspection of an original document must do both of the following, unless a judge orders otherwise:
   
(a)
not more than fifteen days after the day the demand is delivered, arrange a time, date, and place for the production;
   
(b)
produce the document for inspection and permit the document to be copied at the arranged time, date, and place.
  (3) The party who accepts a demand for access to electronic information must do each of the following, unless a judge orders otherwise:
   
(a)
not more than fifteen days after the day the demand is delivered, offer reasonable terms under which the other party will have access to a computer or storage medium in the control of the disclosing party or to another source of electronic information the party accesses to the exclusion of another party;
   
(b)
within the same time, arrange a convenient time and way for the other party to have access;
   
(c)
provide access accordingly.
  (4) The party who refuses a demand for access to electronic information must give reasons for the refusal, and the other party may make a motion for an order under Rule 14.12.
       
Demand for production at trial or hearing
14.11 (1) A party may, before the finish date in an action or the day of the hearing of an application, deliver to another party a demand that the party produce any of the following at the trial or hearing:
   
(a)
the original of a relevant document, or an exact copy of relevant electronic information;
   
(b)
a copy of a relevant document, or a copy of relevant electronic information accurately copied in a readily exchangeable format;
   
(c)
a computer or storage medium containing relevant electronic information;
   
(d)
another means for accessing a source of relevant electronic information the party accesses to the exclusion of the demanding party.
  (2) The party to whom the demand for production is delivered and who has control of the document, information, computer, medium, or source must produce it or provide access to it at the trial or hearing, unless a judge orders otherwise.
       
Order for production
14.12 (1) A judge may order a person to deliver a copy of a relevant document or relevant electronic information to a party or at the trial or hearing of a proceeding if the moving party provides all of the following representations:
   
(a)
the party is in compliance with Rule 15 - Disclosure of Documents and Rule 16 - Disclosure of Electronic Information;
   
(b)
the party believes the delivery would promote the just, speedy, and inexpensive resolution of the proceeding, including a concise statement of the grounds for the belief;
   
(c)
the party will pay the reasonable costs of making the delivery, unless a judge directs otherwise.
  (2)
A judge may order a person to produce the original of a relevant document, or provide access to an original source of relevant electronic information, to a party or at the trial or hearing.
  (3)
A judge who orders a person to provide access to an original source of relevant electronic information may include in the order terms under which the access is to be exercised, including terms on any of the following:
   
(a)
a requirement that a person assist the party in obtaining temporary access to the source;
   
(b)
permission for a person to take temporary control of a computer, part of a computer, or a storage medium;
   
(c)
appointment of an independent person to exercise the access;
   
(d)
appointment of a lawyer to advise the independent person and supervise the access;
   
(e)
payment of the independent person and the person’s lawyer;
   
(f)
protection of privileged information that may be found when the access is exercised;
   
(g)
protection of the privacy of irrelevant information that may be found when the access is exercised;
   
(h)
identification and disclosure of relevant information, or information that could lead to relevant information;
   
(i)
reporting to the other party on relevant electronic information found during the access.
  (4) A judge who is satisfied that the requirement is disproportionate under Rule 14.08 may limit a requirement to produce a copy of a document, to produce exactly copied electronic information, or to provide access to electronic information.
  (5) A motion for an order for production must be made on notice, unless it is permitted to be made ex parte as provided in Rule 22 - General Provisions for Motions.
       
Order to process data
14.13   A judge may order a party to cause data on a computer or in a storage medium actually possessed by the party, or in a database accessed by the party to the exclusion of another party, to be processed so as to produce relevant electronic information.
       
Designated manager for discovery
14.14 (1) A corporate party to a defended action must designate a manager for discovery of the corporation and notify the other parties of the name of the designated manager no more than twenty days after the day pleadings close.
  (2) A corporate party must designate a manager in a contested application no more than two days after either of the following:
   
(a)
the day a notice of contest is delivered to the corporate party who is an applicant;
   
(b)
the day the notice of contest is filed by the corporate party who is a respondent.
  (3) A judge may designate a manager if the corporate party fails to do so.
  (4) A judge may substitute a manager if a corporate party makes an unreasonable designation, such as designating a person who has no real connection with the party’s claim, defence, or ground although such a person is available and able to act as manager.
  (5) A designated manager must, before being discovered, become informed about relevant information available to the party.
       
Public archives and other public repository
14.15   Despite the provisions of Part 5, a party who controls a public archive, museum, or other place where the public has access to documents or electronic information is not obligated to search there for relevant documents or electronic information that are available to all parties.
       

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