A party's failure to issue a subpoena to a former solicitor who refuses to release documents may arguably not constitute a failure to take reasonable steps to comply with discovery obligations, as documents requiring a subpoena may not be within the party's control. However, a failure to file a further affidavit of discovery explaining the position regarding such documents will independently support a finding of non-compliance. The question of whether discovery obligations extend to issuing subpoenas to former solicitors was left open.
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