Legal Oddities in (Blank) Law
RAFAEL ANGEL IRUSTA MACHIN / DREAMSTIME.COM
tribunal or to another legal prac- titioner in the course of litigation.” Undertakings can be
enforced by court motion, contempt of court proceedings and
professional disciplinary bodies.
Lawyers often use undertakings to facilitate commercial and
property transactions. Undertakings provide temporary safeguards to allow agreements to
take effect before every paper is
signed and document delivered.
In this context, the use of undertakings is of mutual benefit to
On the other hand, the practice of giving undertakings in
personal injury litigation typically only benefits the defendant.
Unless carefully worded, undertakings to provide documents
result in the defendant having
expanded discovery rights and
simpler enforcement mechanisms. Normally, a defendant must
establish that a document is relevant and in the possession or
control of the plaintiff; however,
once a plaintiff provides an
undertaking to give the docu-
Continued From Page 11
“Rather than give undertakings to produce
documents, plaintiffs and their counsel should
simply meet their discovery obligations under
the rules of court.
Lawddities Rat bites inmate’s private parts
An inmate has received permission to sue his jailers after
claiming that a rat came into his
cell —and bit his private parts.
Peter Solomon, an inmate in
the Nassau County Correctional
Center in New York, says his
prison ward was full of rodents,
and the wardens knew about it
but did nothing. He claims a rat
emerged from a hole in his mattress and bit his private parts hard
enough to draw blood. He was
forced to undergo a series of rabies
shots, according to Examiner.com.
A judge has ruled that Solomon may proceed with his lawsuit. — Natalie Fraser
STEPHEN BLAIR / ISTOCKPHOTO.COM
ment, all the defendant has to
prove is the existence of the
undertaking and whether it has
Legitimate disputes over the
wording and interpretation of
the undertaking are common.
Allegations of lawyers failing to
fulfill undertakings are taken
seriously by regulators of the
legal profession. A party’s efforts
to have a matter set down for
trial can be stalled by unfulfilled
undertakings. Plaintiffs can
avoid all these problems by simply not giving undertakings to
Over the past two years,
defendants have relied on
Michaud v. Cormier 
N.B.J. No. 182 to argue that a
plaintiff (or his or her counsel)
has a duty to undertake to pro-
vide documents. Michaud was a
personal injury claim involving a
motor vehicle accident. At dis-
covery, the defendant sought pro-
duction of 18 documents, 10 of
which were requests for medical
records and the remaining eight
for various documents in the
plaintiff’s possession (photo-
graphs, resumé and tax returns)
and in the possession of third
parties (gym file, employment
file, EI file and the accident bene-
fits insurer’s file).
David Brannen practises personal injury law with Cantini Law
Group in Nova Scotia, New Brunswick and Prince Edward Island.
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