The Meaning of “Best Efforts” to Answer an Undertaking at Discovery
When a party is being questioned under oath during an examination for discovery (a “deponent”), a common answer is for the deponent to promise that they will make best efforts to get additional information needed to fully answer the question. But what does “best efforts” mean? This obviously cannot be easily answered since it is dependent on many variables. But what the court is looking for is that the party establish that they exhausted avenues:
- that are reasonably available to them; and
- that are likely to have some reasonable prospect of success
In the case before the judge, the deponent did a lot of tracking to locate a witness whose contact particulars had to be provided to the other side, on a best-efforts basis. This included reviewing invoices they had with the witness to identify contact details, reaching out to those contact details, searching the internet, social media sites, etc, all to no avail. The opposing party considered this insufficient, and that the deponent was also required to make cold-calls to other related people in the industry, on the theory that this would likely lead to finding the witness given the small town serviced by the deponent (presumably a close-knit community that could lead to the witness through the grape vine).
Using the rubric above, the court concluded that “it is a bridge too far” to require a deponent to make random cold-calls. Although a cold call was certainly an option that was “reasonably available to them,” there was a complete absence of any evidence that cold-calling had any reasonable prospect of success.
Some helpful words to explain what “best efforts” means, above the rubric above, we have the following words from the court:
“Those who fail at endeavors often wrestle with the question of whether “I could have done more”. One can almost always do more in any situation. That does not mean, however, that “doing more” is reasonable in every circumstance. I do not read the jurisprudence to suggest that “best efforts” requires “every conceivable effort.”
Stephens v. Creative Mechanical et al., 2022 ONSC 955
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc955/2022onsc955.html