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Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

work product

Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

Recently, a hotly contested family case resulted in a several day trial at the Ontario Superior Court.

Both counsel produced hard copies (paper copies) of their case briefs and written submissions and arguments at the end of the trial. Counsel for the husband also produced a digital copy. Counsel for the wife requested that a digital copy of what was submitted to the court should also be produced to the wife.

Counsel for the husband indirectly stated that since he was an officer of the court that the wife would have to accept a hard copy only. Husband’s counsel also mentioned that the digital copy he submitted to the Court was his “work product” and was concerned his arguments may be reproduced and used against his clients in future cases.

Given the level of distrust between the litigants and that the wife required the digital copy to complete her file; wife’s counsel indicated that as a matter of good practice the information, submissions, cases and arguments submitted to the court by one party should be also produced to the opposing party in the same format as it was produced to the court.

Wife’s counsel filed a motion with the trial Judge seeking production of the digital information filed with the Court by the husband. The trial judge agreed with the wife and ordered:

“The court received both paper and electronic copies of the respondent’s closing and case briefs. No exhibits or evidence were received in electronic form. I see no reason why the electronic copy should not be available to the applicant, as was the paper copy. Order to go that the respondent provide to the applicant an electronic copy of his closing and case briefs within thirty days of release of this decision.”

Accordingly, counsel are required to produce to the opposing party information filed with the court in the same format as filed with the Court. There is no “work product” defence or argument that justifies withholding production.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

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