Louise Spiteri & Sandra Toze
School of Information Management
What is eDiscovery?
Electronic discovery refers to the discovery of electronically stored
information. Electronically stored information includes email, web pages,
word processing files, audio and video files, images, computer databases,
and virtually anything that is stored on a computing device – including but
not limited to servers, desktops, laptops, cell phones, hard drives, flash
drives, PDAs and MP3 players.
Electronic discovery is often distinguished from ―conventional‖ discovery,
which refers to the discovery of information recorded on paper, film, or
other media, which can be read without the aid of a computer.
The costs of eDiscovery
In today's business environment the risks and costs due to litigation
and regulatory requirements are sky-rocketing, and are not expected
to subside any time soon.
The average cost to defend a corporate lawsuit now exceeds $1.5
million per case.
With increased regulatory scrutiny touching businesses in virtually every
market, enterprises must approach litigation and regulatory oversight from a
Things to ponder
Typical eDiscovery costs:
Collecting data & computer forensic, which could span $200-$500 an hour.
Processing data from its native format into a format that can be loaded into an
electronic document review system, e.g., extracting and "flattening"
attachments and embedded files, converting the data to a readable format
(could cost up to $1000 an hour)
Reviewing the data, which normally involves paying a lawyer to review every
document associated with a matter to determine pertinence, privilege and
responsiveness (30-50% of all litigation costs).
Final costs could be in the tens of thousands; for large corporations, this
number has exceeded several million.
eDiscovery and Information Management
Information Management is the best solution to drive down your
eDiscovery costs and risks. You need to consider that in most
Data volume continues to double every 18 months.
The nature of data changes from textual data to multimedia visual and audio
The location of data moves from being within the firewall to being everywhere
and nowhere (mobile and cloud).
People do not like to archive, clean up their inbox or implement retention; we
prefer to keep everything. This may be good for knowledge management, but it
creates a huge legal liability.
Important mandate for eDiscovery
Every organization, whether it is government or commercial, must be
able to confront the
identification, collection, preservation, processing, analysis, review
and disclosure of information, either to a regulator or to another civil
party under the appropriate federal or provincial rules of federal rules
of civil procedure.
eDiscovery in Canada
In Canada, the rules for documentary production are codified by each
province’s rules of civil procedure or rules of court.
In terms of electronic documentary production, there is typically a rule
requiring production of documents related to matters in issue in the action,
along with a definition of ―document‖ for the purposes of production to include
various forms of electronic records or data (e.g., Ontario's Rules of Civil
Procedure; Nova Scotia's Judicature Act).
Each province and territory has a well developed set of rules regulating
the production, inspection, dissemination, review, listing and
safekeeping of documents.
While the approach varies from province to province, some provinces’ rules
are substantially similar.
eDiscovery in Canada
Standards have been drafted in Ontario and British Columbia,
specific to each province, with best practice recommendations. The
Ontario E-Discovery Guidelines offered the first attempt at the best
practices guidelines for courts and counsel in Ontario.
The British Columbia guidelines took the form of a practice direction
from the B.C. British Columbia Supreme Court to the profession.
Other provinces are considering similar practice directions. There is
still a need for a national ―best practices‖ set of standards in Canada
to govern multi-jurisdictional litigation and to assist courts in other
provinces where standards have not yet been developed.
Federal Rules of Civil Procedure (FRCP)
Although the FRCP apply to the US, and to any offices of Canadian
businesses located in the US, they have impacted Canadian eDiscovery
principles, as we shall see. Key elements include:
• Parties may obtain discovery regarding any non-privileged matter that is relevant to any
party's claim or defense — including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter.
• For good cause, the court may order discovery of any matter relevant to the subject
matter involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
The Sedona Conference® is a nonprofit law and policy think tank
based in Sedona, Arizona, dedicated to the advanced study, and
reasoned and just development, of the law in the areas of complex
litigation, antitrust law and intellectual property rights.
The Sedona Principles are meant to elaborate further on the Federal
Rules of Civil Procedure with respect to e-discovery
Sedona Canada Principles
The Sedona Conference® Working Group 7, ―Sedona Canada,‖ formed
out of the growing recognition that the discovery of electronically stored
information can no longer be seen as a peculiarity of litigation in the
United States or limited to complex commercial lawsuits in Ontario and
E-discovery is quickly becoming a factor in all Canadian civil
litigation, and requires universal understanding by the Canadian bar
and a common approach rooted in proportionality and
reasonableness, with respect for variations in local rules and practices.
Volume & duplicability
The dramatic increase in email usage and electronic file generation
poses particular problems for large data producers, both public and
A very high percentage of information essential to the operation of public and
private enterprises is stored in electronic format and much is never printed to
Electronic information is subject to rapid and large scale user-created
and automated replication without degradation of the data.
Electronically stored information is more difficult to dispose of than
paper documents. Ordinarily, ―deleting‖ a file does not necessarily
Data are converted to a ―not used‖ status, which allows the computer to write
over the ―deleted‖ data.
This persistence of electronic data compounds the rate at which
electronic data accumulates and creates an entire subset of
electronically stored information that exists unknown to most individuals
with custody and ostensible control over it.
Computer information has content that is designed to change over time
even without human intervention, e.g., email systems that reorganize
and purge data automatically.
As a result, unlike paper documents, much electronically stored information is
not fixed in a final form.
Electronically-stored information is more easily and more thoroughly
changeable than paper documents. Electronically- stored information
can be modified in numerous ways that are sometimes difficult to
detect without computer forensic techniques.
A large amount of electronically stored information is associated with or
contains information that is not readily apparent on the screen view of
This additional information is metadata.
Metadata includes information about the document or file that is
recorded by the computer to assist in storing and retrieving the
document or file.
Much metadata is neither created by nor normally accessible to the
Environmental dependence & obsolescence
Electronic data may be incomprehensible when separated from its
e.g., the information in a database may be incomprehensible when
removed from the structure in which it was created. If the raw data
(without the underlying structure) in a database is produced, it will
appear as merely a long list of undefined numbers.
You may need to keep migrating your records so that they can be
read in the future (e.g., remember 3.5 floppy disks?).
Dispersion & searchability
E-documents may reside in numerous locations – desktop hard
drives, laptop computers, network servers, floppy disks, flash
drives, CD-ROMS, DVDs and backup tapes.
Many of these electronic documents may be identical backup or
archive copies, or earlier drafts.
It may be more difficult to determine the provenance of
electronically stored information than paper documents.
The ease of transmitting electronic data and the routine modification
and multi-user editing process may obscure the
origin, completeness, or accuracy of a document.
The effort to comply to an eDiscovery request is often time-consuming
and expensive due to the volume of information and records created
and stored in electronic form, typically throughout the enterprise in an
unstructured manner on network drives, personal computers and PDAs.
The key to addressing eDiscovery is to be proactive in the management
of information and records with control over the handling of potential ediscovery requests.
Information management policies
Information management professionals must work with the legal staff
and IT to develop a records management program that will support
Information management policies and procedures must be
developed, to assist employees in managing their information and
Key information management points
Information without business value must be disposed of according to policy and in
the normal course of business.
Records that have value to the organization must be stored and managed properly,
under the control of the organization.
A classification scheme providing an information and records management
structure must be implemented for consistency and control.
Records that are no longer needed must be destroyed in a systematic and