In what circumstances will the Master order production of documents under Rule 26(11)?

In the alternative, I find that the Master did not apply the correct legal test for production of documents under Rule 26(11), which is stated in Dufault v. Stevens. The question is not where the “major focus of the debate” appears to be, but whether the documents sought may relate to the issues defined in the pleadings.

I have reviewed the materials filed in support of the application before the Master, and the additional materials filed before me (by the agreement of counsel). I have also reviewed the pleadings as they stood when the application was heard by the Master. I find that the Master was correct in refusing to order Aeroquest to produce documents relating to all of its dealings with Tres‑or between 2002 and 2006, whether or not the documents relate to work done for Adroit. I note that the evidence gives rise to a real concern that the documents, if produced, could prejudice the commercial interests of other unrelated clients of Aeroquest. In Dufault v. Stevens the court stated that where the probative value of the documents would be slight, and the potential prejudice to a third party would be significant, disclosure may be refused. Given the marginal probative value of the documents with respect to the issues raised in the pleadings as they stand, this is a situation in which the application should be refused, due to the possible adverse effects on non-parties.