Judge orders re-do after discrepancy of almost 34,000 documents submitted by parties in ongoing lawsuit

·3 min read
The Yukon court house in Whitehorse. (Paul Tukker/CBC - image credit)
The Yukon court house in Whitehorse. (Paul Tukker/CBC - image credit)

The Yukon government and an oil and gas company must both review the number of documents they've put forward in an ongoing legal battle after a judge ruled one side produced far too many while the other, not nearly enough.

"Chance [Oil and Gas Limited] and Yukon disagree on the scope of document discovery required in this matter," Yukon Supreme Court Justice Edith Campbell wrote in a Sept. 1 decision.

"... Their disagreement is no better reflected than in the difference in the number of documents they each produced. Yukon listed 445 documents in its affidavit of documents, whereas Chance listed over 34,000 documents."

Chance, formerly known as Northern Cross, filed a $2.2-billion lawsuit against the Yukon government in 2017 after officials imposed a moratorium on fracking in the territory. Chance had secured exploration rights to oil deposits in the Eagle Plains area, in northeastern Yukon, prior to the ban in 2015.

The case is still making its way through the court system. Both sides recently filed applications asking for Campbell to order the other side to comply with document discovery, where parties must identify and share documents in their possession that are relevant to the lawsuit.

Documents included 'jokes, family updates'

Campbell ultimately found that the Yukon government had taken too narrow a scope when it came to identifying documents that could be relevant to the case, agreeing with Chance that the government's affidavit of documents was "deficient."

She ruled the territorial government was obligated to produce all documents in its possession related to its efforts to promote investments in oil and gas in the territory from 2004 up until the fracking moratorium, among other topics, and should also expand its list of key words and issues used for screening documents for relevance.

On the other hand, Campbell also found that Chance's affidavit of documents contained "an unacceptable number of clearly irrelevant documents." While she wrote that the number of documents in and of itself was not evidence of overproduction, and that some unrelated documents could be expected to be found in an otherwise proper production, the Yukon had found a "disproportionate number" in Chance's.

"One should not expect to find over 25 clearly irrelevant documents (some of them being 30 pages long) about jokes, family updates, or things happening in other parts of the country, as counsel for Yukon did when she briefly scanned through 30 to 40 pages of over 2,600 pages of Chance's affidavit of documents," Campbell wrote.

"I note that counsel conducted her cursory search after Chance had already performed a further review at Yukon's request … The fact that a high proportion of clearly irrelevant documents remained in Chance's document production after its further review raises questions about the relevance criteria applied by Chance during its manual review process."

She ordered Chance to conduct a manual review of its approximately 34,000 documents "in order to remove, as much as is reasonable, clearly irrelevant documents from its production."

A trial date for Chance's lawsuit has yet to be set.

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