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A recent King’s Bench decision discusses preparing records for disclosure, and preparing an affidavit of records.

Here are some statements there which litigators should note:

1. Unambiguous identification is still required, so a description in the affidavit or a number on each sheet of the records, is needed (¶’s 18-19, 28, 32-33).

2. Whether or not the descriptions given are satisfactory, each individual record (or page of a record) must be numbered (¶’s 20, 24, R. 5.7).

3. Bundling can be useful, but is not mandatory where a computer generates numbering and adequate descriptions (¶ 21). Bundling is permissible if a party is short of resources, but a party must not bundle unrelated or over-large numbers of records. Still less may one do that to conceal (¶ 22). [Quaere as to a lawyer delegating all the work to others, or a different rule for parties with fewer resources.]

4. Where neither a bundle nor its contents are numbered, a party may have to number each page, stating the number of pages in each bundle (¶ 24).

5. A bundle is permissible only if its contents are “all of the same nature”, which is a stricter test than “meaningful grouping”. To be of the “same nature”, the records must either be all connected in some logical way, or each of the contents must be of the same type or class (such as an invoice or a bank statement or a common source) (¶’s 26-31, Rule 5.7).

6. A bundle must be described. That can be brief if all the documents are very similar, such as same type of document, source, and time period. More description is needed the more heterogeneous the contents of the bundle (¶ 32).

7. If the description of a bundle is insufficient, especially if there are some vague of “miscellaneous” terms, then the court may order a further and better affidavit of records (¶’s 32-33).

8. If the number and type of records for which privilege of common types (solicitors’ and litigation) is large, so that and the description make privilege curious or unlikely, that may exacerbate the need for better descriptions and maybe then inspection by a court referee (¶’s 37-42).

This decision is Starratt v. Chandran 2023 ABKB 609 (Oct 27).

I comment that R. 5.7 expressly orders that producible records each be briefly described, except that a bundle of the same nature of records sufficiently described removes a need to describe each record in that bundle. The latter part of this Rule certainly includes privileged records, and it seems to cover all records. I have never seen much point to (say) a 200-page description of individual records one by one, when all are part of the same series of invoices or correspondence between the same senders and recipients. There is a much fuller discussion of the legal and practical aspects of numbering, bundling, etc, in Côté, Systematic Advocacy: Planning to Win, Chapter 7 Parts J, K, and M (Juriliber 2017).

– Hon. J.E. Côté

RECORDS AND AFFIDAVIT OF RECORDS