The Original E-Discovery: Civil Justice Reform and a Return to the Equitable Origins of Discovery

In the autumn of 2023, the Chief Justice and Attorney General of Ontario announced a broad new effort to review the rules of civil procedure to make civil dispute resolution more efficient and less expensive to enhance access to justice in the province. However, such efforts to reform the rules of civil procedure are nothing new. This article examines the historical and contemporary aspects of civil justice reform in Ontario, focusing on the pre-trial discovery process. Among the most expensive aspects of the civil litigation process, discovery began as an equitable tool, with roots in the English Court of Chancery. It was also one of equity’s most important procedural tools, and driving force behind the fusion of the courts of law and equity under the Judicature Acts 1873-1875 (UK). This article traces the equitable origins of discovery to its current form in modern civil procedure, with an emphasis on practice and reform in Ontario. It highlights the cyclical nature of civil justice reform, drawing parallels between recent initiatives in Ontario and the reforms that led to the Judicature Acts of 1873-1875. Many blame equity for the extraordinary expenses now associated with the discovery process. However, the paper argues the current discovery process misconceives key elements of the process by creating a default rule, deviating in significant ways from its equitable origins, which were highly discretionary. These changes have contributed to the current inefficiencies and high costs that overwhelm litigants. The author contends that the broad "semblance of relevance" standard established in the 1882 case of Peruvian Guano contributed to the overproduction of documents and prolonged pre-trial procedures not because of equity’s breadth and discretion but because the process has become so formulaic and rigid, a hallmark of common law procedure. The paper suggests that recent reforms, which emphasize proportionality and judicial oversight, reflect a return to equitable principles and offer potential solutions to the current challenges in the discovery process. Through a detailed historical analysis, the article demonstrates that equity's historically flexible and discretionary approach to discovery can provide valuable insights for contemporary civil justice reform. The author advocates for a greater appreciation of equity’s emphasis on judicial discretion to shape the procedure and practice governing discovery, and suggests this historical context may help ground efforts to reform discovery to better suit the needs of proportionality in civil justice reform.