The Lawyers Weekly - April 29, 2011

Law Lawddities
Lawddities

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 both parties.

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-

Undertakings
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

Lawddities

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STEPHEN BLAIR / ISTOCKPHOTO.COM

ment, all the defendant has to prove is the existence of the undertaking and whether it has been fulfilled.

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 produce documents.

Over the past two years,
defendants have relied on
Michaud v. Cormier [2009]
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).