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June 16, 2010

Rule 31.05.01 - Extending the Seven Hour Discovery Rule

Those of you interested in the interpretation of the new rule 31.05.01, which provides a seven hour total limit on discovery, may wish to review Osprey Capital Partners v. Gennium Pharma Inc., [2010] O.J. No. 1721 (S.C.J).

Master Glustein granted leave to the plaintiff to exceed the seven hour limit and permitted it seven hours for each defendant.

Some of the factors considered were:

1. The pleadings claimed $1.5 million in damages;
2. A review of the pleadings revealed complex issues of fact and law; and
3. There would be unfairness if the defendants each had seven hours to examine the plaintiff (for a total of 21 hours) and the plaintiff was limited to seven, or approximately two hours for each defendant.

Master Glustein also held that it is not necessary for counsel to attempt examinations prior to bringing a motion to extend time. In addition, the Master did not agree that counsel must identify key documents and issues in the discovery as part of the discovery plan.

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