T-2330-75
Raymond Cardinal, Chief, and Edward Morin,
Charles Cowan, Romeo Morin, Alex Peacock and
Alphonse Thomas, Counsellors of the Enoch Band
of the Stony Plain Indians for Themselves and on
behalf of the Enoch Band of the Stony Plain
Indians Reserve No. 135 and the Enoch Band of
the Stony Plain Indians Reserve No. 135
(Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Edmonton, April 4,
1977; Ottawa, April 18, 1977.
Practice — Federal Court Rule 474 — Motion by defendant
to have general issues of liability tried in preliminary trial,
followed by issues of damages and accounting tried in a
subsequent trial — Not same as application to refer damages
to referee, as per Rule 480 — Alternatively, Rule 474 applica
tion to have three particular issues of law tried with undisput
ed facts in a preliminary trial — Federal Court Rules 474,
480.
The plaintiffs' action arises out of the surrender of part of
their reservation. The defendant applied for an order under
Rule 474 that the issues as to liability be tried in a preliminary
trial, and that the matter of damages and accounting be
considered in a subsequent trial, pending the outcome of the
first trial. Alternatively, the defendant applied under Rule 474,
for an order that three particular issues of law, whose relevant
facts were not in dispute, be considered in a preliminary trial.
Held, the motion for an order to determine the general issue
of liability separately from the issues of damages and account
ing is denied. Rule 474(1)(a) is not intended to achieve the
same thing as Rule 480—the deferral of the trial of issues that
will be of no consequence in the absence of liability or that may
well be readily settled once liability is established. To equate all
"the issues as to liability" in this action with the kind of
questions of law, and for questions as to admissibility of
evidence, that Rule 474 contemplates to be subject of a prelim
inary determination, is to do some violence to the apparent
intent of Rule 474. The Court is not asked to provide for the
preliminary determination off a question of law that it has
serious reason to believe will be an end to the action, but rather
to provide for the determination of all the issues of law and
admissibility of evidence necessary to determine liability in
respect of all the issues raised in the action.
Held also, the motion for an order to determine three
particular questions of law in a preliminary trial is dismissed.
Although these questions could be dealt with conveniently in
such a preliminary proceeding, there seems no very good reason
for doing so, since they are not the only issues and their
disposition would not likely dispose of the action. Although it
was represented that a final disposition of the three issues
would facilitate the trial of other actions pending before the
Court, it is not a matter properly to be taken into account. The
plaintiffs are entitled to have their action tried on its own
merits alone.
Emma Silver Mining Company v. Grant (1879) 11 Ch. D.
918; Central Canada Potash Co. Ltd. v. A.-G. of Sas-
katchewan [1974] 4 W.W.R. 725, applied.
APPLICATION for order under Rule 474.
COUNSEL:
A. M. Harradence, Q.C., and B. G. Nemetz
for plaintiffs.
G. W. Ainslie, Q.C., and Carol Pepper for
defendant.
SOLICITORS:
Harradence and Company, Calgary, for
plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This is an action arising out of
the surrender, in May, 1908, of approximately ten
square miles of Reserve No. 135, near Edmonton,
Alberta.
The cause of action is founded on allegations of:
1. Breach or breaches of an express trust creat
ed by the Indian Act' in effect at the relevant
time.
2. Breach or breaches of a fiduciary relation
ship between the plaintiffs and their predecessors
in title and the defendant, her predecessors in title
and servants and agents for the time being.
3. Non-compliance with mandatory provisions
of the Act with the result that the purported
surrender was a nullity and void ab initio.
4. A mistake of fact or of mixed law and fact,
common to the parties, upon which the surrender
proceeded.
' R.S.C. 1886, c. 43 or R.S.C. 1906, c. 81, as amended.
As to 1 and 2, particulars of the breaches of
trust and fiduciary relationship are identical. They
are set out in paragraph 6 of the amended state
ment of claim and the amended particulars filed
by the plaintiffs in respect thereof pursuant to an
order of this Court made May 20, 1976. As to 3
and, I take it, 4, the particulars are set out in
paragraph 7 of the statement of claim.
The examination for discovery of the plaintiff,
Edward Morin, who was agreed to be the appro
priate person to be examined on behalf of the
plaintiff Band, establishes that all of the material
facts relied on by the plaintiffs are set forth in
their pleadings and all of their evidence is docu
mentary. The schedule to the plaintiffs' list of
documents comprises over 43 foolscap pages. The
defendant admits all but three letters from a Rev.
Tessier to the Hon. Frank Oliver, then Minister of
the Interior and Superintendent General of Indian
Affairs, while reserving her right to object to their
admissibility as evidence in the cause. The three
letters must be proved.
The plaintiffs seek a variety of declaratory
orders giving effect to the allegations of the trust
or fiduciary relationship, the fact that the surren
der was null and void ab initio and that it was
obtained through undue influence, fraud and gross
breach of trust. They then seek $50,000,000 com
pensation for breach of trust or, alternatively,
general damages in that amount. They also seek
accountings of the proceeds of the sale and in
connection with all matters relating to the sale as
well as costs.
The defendant now applies, in Part I of her
motion, for an order that the issues as to liability
be tried as a preliminary issue and that, depending
on the result, the issues of damages and accounting
be tried later in such manner as may be directed
by the Trial Judge. I should have no doubt as to
my jurisdiction to achieve something of this result
if the defendant's motion were framed so as to fall
within Rule 480 2 . However, the defendant plainly
is not asking for a reference of the damages and
accounting to a referee. In the expression adopted
during argument, she wants to "split the trial".
The plaintiffs question my jurisdiction to grant the
order sought and the defendant asserts that it is a
proper order under Rule 474.
Rule 474. (1) The Court may, upon application, if it deems it
expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, or
(b) determine any question as to the admissibility of any
evidence (including any document or other exhibit),
and any such determination shall be final and conclusive for the
purposes of the action subject to being varied upon appeal.
(2) Upon application, the Court may give directions as to
the case upon which a question to be decided under paragraph
(1) shall be argued.
The decision of Jessel M.R., in Emma Silver
Mining Company v. Grant 3 has been cited with
approval in almost every subsequent reported case
where such a motion has been seriously considered.
In a case of this kind my opinion is that the Judge must have
some evidence which will make it at least probable that the
issue will put an end to the action. The Plaintiff is not to be
harassed at the instance of the Defendant by a series of trials,
each trial taking issue on every link of the Plaintiff's case. That
is not the meaning of the rule as I understand it, but it may
properly be applied in such a case as that I have stated, where
the Judge has serious reason to believe that the trial of the issue
will put an end to the action.
2 Rule 480. (1) Any party desiring to proceed to trial with
out adducing evidence upon any issue of fact including, without
limiting the generality thereof,
(a) any question as to the extent of the infringement of any
right,
(b) any question as to the damages flowing from any
infringement of any right, and
(c) any question as to the profits arising from any infringe
ment of any right,
shall, at least 10 days before the day fixed for the commence
ment of trial, apply for an order that such issue of fact be, after
trial, the subject of a reference under Rules 500 et seq. if it
then appears that such issue requires to be decided.
(2) An order of the kind contemplated by paragraph (1)
may be made at any time before or during trial and may be
made by the Court of its own motion.
3 (1879) 11 Ch. D. 918 at 927.
The applicable Rule considered by Jessel M.R.,
while apparently serving the same purpose as Rule
474, is quite different in terminology'. It is, how
ever, very similar to Saskatchewan Rule 264,
which Bence C.J.Q.B. felt did not give him juris
diction to do precisely what the defendant is now
asking me to do 5 . Since neither party in that case
questioned his jurisdiction, the learned Chief Jus
tice decided the application on its merits and his
refusal to split the trial as between quantum of
damages and other issues was upheld by the Court
of Appeal 6 , without reference to the matter of
jurisdiction.
Rule 474(1)(a) is not intended to achieve the
same thing as is Rule 480—the deferral of the trial
of issues that will be of no consequence in the
absence of liability or that may well be readily
settled once liability is established. The practical
benefits of such a procedure in an appropriate
case, from all points of view, are self-evident. To
equate, as the defendant does here, all "the issues
as to liability" in this action with the kind of
questions of law, and/or questions as to admissibil
ity of evidence, that Rule 474 contemplates be
subject of a preliminary determination, is to do
some violence to the apparent intent of Rule 474. I
am not asked to provide for the preliminary deter
mination of a question of law that I have serious
reason to believe will be an end to the action, but
rather to provide for the determination of all of the
issues of law and admissibility of evidence neces
sary to determine liability in respect of all of the
issues raised in the action.
Part I of the defendant's motion must be dis
missed. Part II is advanced in the alternative. Part
4 Rules of Court, 1875, Order XXXVI, rule 6(1):
(1) The Court or a Judge may, in any action at any time
or from time to time, order that different questions of fact
arising therein be tried by different modes of trial, or that
one or more questions of fact be tried before the others, and
may appoint the place or places for such trial or trials, and in
all cases may order that one or more issues of fact be tried
before any other or others.
Central Canada Potash Co. Ltd. v. A.-G. of Saskatchewan
[1974] 4 W.W.R. 725.
6 [1974] 6 W.W.R. 374.
II A is founded on Rule 474 but instead of seeking
simply to have all the issues of liability, generally
described, tried and decided as a preliminary issue
before the issue of damages or accounting, it is
directed to three particular issues of law, in respect
of which the relevant facts are not in dispute in
view of admissions. These issues are:
1. Was the surrender valid under subsection
49(1) of the Act as, while it was approved by a
majority of those members of the Band who did
vote, it was not approved by a majority of the
members of the Band entitled to vote?
2. Was the certification of the surrender by one
principal man only sufficient compliance with
subsection 49(3) of the Act?
3. Prior to their surrender, was King Edward
VII trustee of the lands for the benefit of the
Band members under an express trust constitut
ed by the Act and provisions of Treaty No. 6?
While I am reasonably satisfied that these ques
tions could conveniently be dealt with in such a
preliminary proceeding, there seems no very good
reason for doing so, since they are not the only
issues and their disposition would not likely dispose
of the action. The Court cannot ignore a general
awareness of the provisions made by the Govern
ment of Canada to finance the plaintiffs' legal
action to assert the claims herein. There is no good
reason to think that a final disposition of anything
but all the issues as to liability and, if liability be
found, as to remedies raised in the action will
dispose of it. I have seriously considered the
representation that a final disposition of the three
issues would facilitate the trial of other actions
pending before the Court but have concluded that
is not a matter properly to be taken into account.
The plaintiffs are entitled to have their action tried
on its own merits alone.
Part II B seeks to define the evidence upon
which the questions in Part II A are to be
answered and requires no further comment.
Part II C seeks
... an order pursuant to Rule 474(1)(b) of the Rules of
Practice of this Honourable Court that the issue as to the
admissibility of evidence, in relation to the surrender of other
lands by other bands of Indians in Western Canada, including
the admissibility at trial of the documents put to Herbert
Taylor Vergette, on his examination for discovery, and marked
for identification, be set down and tried as a preliminary issue
in this action before the trial of the action;
That wording is very peculiar since what the
defendant sought and what the plaintiffs opposed
throughout several hours of argument was not that
the question of the admissibility of similar facts be
set down and tried as a preliminary issue but
rather an order that such evidence be excluded.
When I pointed this out, counsel for the defendant
sought to amend the notice of motion and the
plaintiffs' counsel refused consent. I declined to
permit the amendment at that stage but I am
entirely satisfied that the plaintiffs were not misled
and put at any disadvantage by what happened.
They were prepared to, and did, oppose what was
actually sought and not what, read literally, the
notice of motion sought. It was not until I called
attention to the apparent anomaly that plaintiffs'
counsel objected to, as distinct from opposed, an
order going excluding evidence of similar facts.
The substantive question of the admissibility of
that evidence had also to be dealt with in the
plaintiffs' concurrent motion seeking re-attendance
of the defendant's officer at his examination for
discovery. In the result, I see no prejudice or
disadvantage to the plaintiffs in my dealing with
what the parties themselves obviously intended to
deal and thought they were dealing with rather
than dealing with the notice of motion literally,
and I see nothing but waste in not doing so.
The matters in issue are all defined by the
pleadings. Evidence as to similar facts is not rele
vant to any of them. The circumstances surround
ing the surrender of other lands, either from
Reserve No. 135 in 1902, or from other reserva
tions and, in particular, from the St. Peter's
Reserve, near Selkirk, Manitoba, in September,
1907, have no bearing on whether the express trust
or fiduciary relationship alleged here existed. They
have no bearing on whether there was some one or
more failures to comply with mandatory provisions
of the Act in this instance. As to the alleged
breaches of the trust or fiduciary relationship, the
facts are all to be proved by documents admitted
by the defendant who alleges nothing in defence
that would render evidence of similar facts admis
sible in rebuttal.
I consider it expedient to deal with the question
of admissibility of evidence by way of a prelim
inary determination under Rule 474 because of the
apparent oppressive burden that would be imposed
on the defendant if it were required to produce the
documents relating to the 90 odd other surrenders
that occurred in Western Canada prior to World
War I and the great waste involved in both parties
dealing with such a mass of material for no useful
purpose in so far as this action is concerned. I am
indebted to counsel for the information that some
3,000 documents have been produced in connec
tion with this claim alone.
Part II D is simply another facet of Part II C,
namely an order, under Rule 476 7 , for the deter
mination of the relevance to the issues herein of
the other surrenders, before deciding whether the
defendant's officer should be examined for discov
ery in respect of them.
Part II E seeks an order requiring Edward
Morin to re-attend at his own expense to be re
examined a second time and Part II F seeks an
order requiring answers to specific questions previ
ously put to him. It should, perhaps, be empha
sized that these, as all Part II motions, are made in
the alternative to the Part I motion which was
predicated, inter alia, on the parties foregoing
further examinations for discovery.
7 Rule 476. Without limiting the generality of Rule 474 or
475, if the party from whom discovery of any kind or inspection
is sought objects to the same or any part thereof, the Court, if
satisfied that the right to the discovery or inspection sought
depends on the determination of any issue or question in
dispute in the action, or that for any other reason it is desirable
that any issue or question in dispute should be determined
before deciding upon the right to the discovery or inspection,
may order that such issue or question be determined first.
The - problem with Morin's answers to questions
put to him is that, either personally or by his
counsel, he responds to proper questions as to what
facts are being relied on in support of this or that
cause of action with the reply that he is relying on
the documents, that is, some one or more, or
something in one or more, of the 3,000. Strictly
speaking that is not good enough; the duty of a
person being examined for discovery to inform
himself is so clear as to require no elaboration.
Practically, in the circumstances, it may be about
as good as can reasonably be expected. The dilem
ma is illustrated by the following exchange be
tween counsel, Mr. Harradence for the plaintiffs,
Mr. Ainslie for the defendant, at pages 56 and 57
of the transcript of Morin's examination:
355 MR. HARRADENCE:... Now, our position is simply this,
that we're relying on your documents to establish the
inducement. And by inducement, I mean the whole gen
eral picture, and the position I'm taking is that the
witness ought not to be at this stage forced to read these
documents and then interpret them. Our position is that
if these documents are relevant and admissible, then
whatever probative value will be attached to them will
have to be done by the presiding Justice and our position
is that we will tell you what we know about the matters
personally as we have done, but we will not comment
further upon these documents unless ordered to do so by
a Judge.
356 MR. AINSLIE: Thank you, Mr. Harradence. I have not
asked the witness to comment on any documents. Your
position, as I understand it, is any inducement by the
defendant to sell the lands was improper, is that correct?
357 MR. HARRADENCE: Yes, sir.
358 MR. AINSLIE: Mr. Morin, could you just, in your own
words, tell me what inducements the plaintiffs say were
made by, the defendant?
359 MR. HARRADENCE: Mr. Ainslie, we say we have given
you those answers.
360 MR. AINSLIE: The question has not been answered.
361 MR. HARRADENCE: Well, my position is that it has.
362 MR. AINSLIE: So you're instructing the witness not to
answer the question?
363 MR. HARRADENCE: Yes, sir, I am, on the grounds that he
has already answered, and to do more would require the
reading of these documents.
The defendant is entitled to a further general
examination for discovery and there is no basis I
can see for my refusing this order; however before
granting it, I propose to ask the defendant to give
some consideration to the utility of the exercise
and, perhaps, to whether interrogatories might not
serve better so that the plaintiffs would have - the
time necessary to extract specifics from the mas
sive documentation.
The plaintiffs are on notice as to the particular
questions enumerated in Part II F. If a general
re-examination is ordered under Part II F, Morin
should be prepared to answer all those questions
except Nos. 405, 413, 795, 797, 799 and 802. In
the alternative, should the defendant opt for inter
rogatories, and the Court approve, the other ques
tions may be dealt with therein.
I propose to adjourn Parts II E and F of the
motion sine die with leave to the defendant to
again bring them on with two days notice to the
plaintiffs. I now turn to the plaintiffs' motion
requiring the re-attendance of the defendant's offi
cer, Herbert Taylor Vergette, at his examination
for discovery.
In addition to (1) seeking answers to specific
questions, the plaintiffs ask (2) an order that in so
far as those questions request searches for further
documents, those searches be ordered. They ask
(3) for a declaration that the issues raised in
questions 945 to 948 are relevant and compelling
Vergette to inform himself thereon; the defendant
consents to this declaration and order going and
also to (4) an order under Rule 448 that the
defendant file an affidavit verifying its list of
documents. As to the affidavit, the plaintiffs ask,
and the defendant does not consent, (5) that it
disclose all documents (and that Vergette inform
himself and answer questions or re-attendance) in
the areas of (A) the practice of the Crown relative
to the obtaining of consent of Indian Bands to
surrenders between 1887 and 1945; (B) all surren
ders or attempts to obtain surrenders of reserve
lands held, under the 1886 Act and its successors,
in Manitoba, Saskatchewan, Alberta and the
Northwest Territories, which were initiated by the
Crown during the tenure of Hon. Frank Oliver as
Superintendent General of Indian Affairs; (C) all
legal opinions received by the Department of
Indian Affairs relative to the formalities necessary
to obtain a valid surrender for sale of Indian lands
from 1887 to 1945 and (D) those relating to
questions not answered and, as a result of this
application, ordered to be answered.
As to the matters embraced in Item 5(A) and
(B), the application is denied, for reasons that
need not be repeated, on the ground that evidence
as to similar facts will not be admissible at the
trial. Item 5(C) is denied; the opinion, from time
to time, of legal advisers as to a question of law is
irrelevant to the issue. Item 5(D) and Item 2 may
conveniently be dealt with together after Item 1.
Items 3 and 4 being consented to, orders will go.
In view of my conclusion that evidence as to
similar facts will not be admissible at the trial,
Item 1 of the plaintiffs application is dismissed as
to the following questions:
(i) 103, 104, 116, 586, 587, 625, 626, 627, 633,
818 to 821, 844 and 848, 1286 to 1299, which
relate to the government's general policies and
practices with respect to surrenders of reserve
lands;
(ii) 515 and 1276 to 1285, which relate to a
1902 surrender of part of Reserve No. 135;
(iii) 795 to 800, 802 to 810, 817 and 842, which
relate to a surrender of a portion of the Blood
Reserve near Cardston, Alberta;
(iv) 873, 874, 1017 to 1033 and 1035 to 1114,
which relate to the surrender of the St. Peter's
Reserve near Selkirk, Manitoba, a subsequent
Commission of Inquiry into it and the events
that ensued thereon;
(v) 914 to 916, 919, 923, 934 to 937, 939, 951,
954, 959 to 962, 964 to 967, 969, 970, 973, 975,
976, 978 to 983, 985 and 988, which relate to a
surrender of reserve lands by the Seshart Band
on Vancouver Island, defects perceived by the
government, and the events that ensued thereon;
The following questions all ask the defendant to
admit documents that have already been admitted,
to identify who signed or authorized their issue,
which appears immaterial in view of the fact of
their admission, and as to the interpretation of or
conclusion to be drawn from their rather ordinary
language in the light of applicable provisions of the
Indian Act:
121, 126, 128, 136, 150, 186, 196, 206, 217,
304, 309, 312, 522, 528, 589, 843 and 845,
and Item 1 of the plaintiffs' application is dis
missed as to them.
In view of the defendant's admission that the
surrender in issue was not assented to by a majori
ty of the members of the Enoch Band entitled to
vote but merely by a majority of those who did
vote, Item 1 of the application is dismissed as to
the following questions:
(i) 607 to 610, 942 and 943, which seek to
verify what has been admitted;
(ii) 614, 615, 634 to 642, 644 to 647, 650, 657
to 665, 669, 670, 672 to 676, 681, 683 to 690,
738, 740 to 742, 856 to 861, 863, 865 to 869,
880 to 889, 893 to 896, which relate to the
government's policy from time to time as to the
correct legal interpretation of the word "majori-
ty" in the pertinent section of the Act;
(iii) 709, 711 to 714, 718, 719, 724, 726, 733,
755 to 762, 764, 767, 770, 775, 779, 780, 784 to
786, 789 to 792, 822 to 828, 832 and 841, which
relate to possible action, including amendment
of the Act, that would have removed any doubt
that practice and correct legal interpretation
were not in conformity; and
(iv) 991, 993 to 1003, 1007, 1008, 1010, 1011
and 1014, which relate to the policy formed and
action taken in this area in 1939.
The affidavit accepted by the Governor in
Council proving the surrender of the subject lands
is admitted by the defendant. Whether it was
sufficient in view of the mandatory provisions of
the Act and the consequences of its insufficiency,
if that be found, are pure questions of law.
Accordingly, Item 1 of the plaintiffs' application is
dismissed as to the following questions:
691 to 698, 703, 704, 706 to 708, 899, 900, 903,
904, 910, 912 and 913.
I find nothing in the material before me that
would indicate the relevance to the issues of the
government's practice or policy, or lack thereof, of
providing independent legal representation to an
Indian Band in connection with a proposed surren
der. Accordingly Item 1 of the motion is dismissed
as to questions 811 to 814 and 816. Likewise, there
is nothing to indicate the relevance of any action
or lack of action by the government following a
debate in the House of Commons March 22, 1911
and the motion is dismissed as to questions 1115
and 1120 to 1137. No. 1139 was answered.
The defendant is not answerable in law for the
actions or opinions of private citizens who are not
her servants or agents. A private Member of Par
liament is a private citizen in that sense, not a
servant or agent of the Crown. Item 1 of the
plaintiffs' application is dismissed as to the follow
ing questions because, for the above reason, they
are not properly to be put to the defendant on
examination for discovery:
1141, 1143, 1144, 1145, 1147, 1148, 1150, 1152
to 1155, 1157, 1159, 1160, 1161, 1163, 1165,
1167 to 1183, 1185 to 1188, 1193 to 1198, 1201
to 1205, 1208 to 1214, 1218 to 1223, 1225,
1226, 1231 to 1234, 1246 to 1249, 1251 to 1257,
1259, 1260, 1264, 1266, 1268 to 1271 and 1273.
Question 420 seeks the answer to, who paid the
charges for a collect telegram sent June 28, 1908
from one J. A. Markle in Gleichen, Alberta to the
Department of Indian Affairs in Ottawa. It also
seeks the significance of the number "327569"
stamped on the copy produced by the plaintiffs.
The materiality of who paid the charges and infor
mation as to the significance of that number is not
immediately apparent to me; however, the cost of
getting the information some 70 years after the
event is obvious. Item 1 of the plaintiffs' motion is
dismissed as to question 420.
Question 457 asks for an interpretation of or an
admission of something in a document not admit
ted by the defendant and is not proper. The docu
ment is one of the letters from Rev. Tessier to
Hon. Frank Oliver.
The defendant's objection to answering the fol
lowing questions obviously stems from a view,
contrary to the plaintiffs', of the inferences proper
ly to be drawn from the government offering, in
advance of the surrender in issue, to make avail
able out of the proceeds of sale of the surrendered
lands, or otherwise, certain provisions, horses and
equipment. I cannot, at this juncture, hold that
evidence in this area would necessarily be inad
missible or irrelevant. Item 1 of the plaintiffs'
application is granted as to questions 506, 509,
1309 to 1313 and 1316 to 1318 on the basis that
such questions are directed to the surrender in
issue and not to similar facts.
Similarly, I cannot at this point, hold that evi
dence as to the activities of Rev. John McDougall
in an attempt to obtain a surrender from the
Enoch Band in November, 1907, would be inad
missible or irrelevant to the surrender in issue
provided, of course, he was acting for the Crown
therein. Accordingly, questions 1300 to 1306
should be answered. Assuming that 1307 relates to
those immediately before it, it also should be
answered. Question 1308 is, to the extent it is not
argumentative, merely repetitious of 1301.
In accordance with Items 2 and 5(D), docu
ments pertinent to the questions ordered to be
answered should be produced.
The costs of both applications will be in the
cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.