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Within 90 days after a statement of defence has been filed, the parties must file and serve affidavits of records listing the records in their possession, custody or power that are relevant and material to the issues in the action. The parties often agree to extend that time period.
Records include any physical representation or record of any information, data or other thing that is capable of being represented or reproduced visually or by sound, or both.
A record is relevant and material if it can reasonably be expected to significantly help in the determination of one or more of the issues raised in the pleadings, or to ascertain evidence that could reasonably be expected to significantly help in such determination.
An affidavit of records lists the records that a party does not object to produce to the other parties and the records that the party does object to produce. A party can object to produce records that are privileged.
Privileged records include records of confidential communications between lawyers and their clients for the purpose of seeking or giving legal advice, records of without prejudice communications between parties (or their lawyers) for the purpose endeavouring to resolve a dispute, and records created for the dominant purpose of prosecuting or defending an action.
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