E Discovery In Canada


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E Discovery In Canada

  1. 1. in Cana da
  2. 2. <ul><li>Applicable « rules » </li></ul><ul><li>Best Practices </li></ul><ul><li>Case law </li></ul>
  3. 3. <ul><li>Ontario </li></ul><ul><ul><li>Guidelines For The Discovery of Electronic Documents in Ontario (October 2005) </li></ul></ul><ul><li>British Columbia </li></ul><ul><ul><li>British Columbia Electronic Evidence Project Practice Direction (July 2006) </li></ul></ul><ul><li>Nova Scotia </li></ul><ul><ul><li>Nova Scotia Rules of Civil Procedure - E-Discovery, part 5 (June 2008) </li></ul></ul><ul><li>National </li></ul><ul><ul><li>National Model Practice Direction for the Use of Technology in Civil Litigation (January 2008) </li></ul></ul><ul><ul><li>National Generic Protocol </li></ul></ul>
  4. 4. <ul><li>The Sedona Canada Principles </li></ul>
  5. 6. Electronically stored information is discoverable. discoverable Discoverability
  6. 7. <ul><ul><li>the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; </li></ul></ul><ul><ul><li>the relevance of the available electronically stored information; </li></ul></ul><ul><ul><li>its importance to the court’s adjudication in a given case; and </li></ul></ul><ul><ul><li>the costs, burden and delay that may be imposed on the parties to deal with electronically stored information. </li></ul></ul>In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account: proportionate nature scope relevance importance costs burden delay Proportionality
  7. 8. As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information. reasonably anticipated Preservation preserve
  8. 9. Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information. Meet and Confer meet and confer
  9. 10. The parties should be prepared to produce all relevant electronically stored information that is reasonably accessible in terms of cost and burden. Accessibility reasonably accessible cost burden
  10. 11. A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information. Accessibility Corollary deleted residual information
  11. 12. A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching, or by using selection criteria to collect potentially relevant electronically stored information. electronic tools processes Technologies
  12. 13. Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process. Format format
  13. 14. During the discovery process parties should agree to, or if necessary, seek judicial direction on, measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data. Confidentiality privileges privacy trade secrets
  14. 15. During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums. Jurisdiction forum
  15. 16. Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless. Sanctions Sanction materially prejudiced not intentional reckless
  16. 17. The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order. costs Costs
  17. 18. <ul><li>What will the judges say? </li></ul>
  18. 19. <ul><li>Scope of production and discovery </li></ul><ul><li>Requests for further production </li></ul><ul><li>Effect of failure to disclose or produce for inspection </li></ul><ul><li>Preservation of evidence </li></ul><ul><li>Spoliation </li></ul><ul><li>Proportion and Marginal Utility </li></ul><ul><li>Document Retention Policies </li></ul><ul><li>Process for review of electronic documents for relevance and privilege </li></ul><ul><li>Disclosure of privileged and private communications   </li></ul><ul><li>Use of a third-party Inspector and Electronic Discovery vendor to retrieve information from electronic sources </li></ul><ul><li>Cost Shifting </li></ul><ul><li>Metadata, deleted and hidden information </li></ul><ul><li>Duplicate Documents </li></ul><ul><li>Examination of an IT Representative </li></ul><ul><li>Forensic Collection and Preservation </li></ul><ul><li>Anton Piller Orders </li></ul>
  19. 20. D ominic j aar [email_address] 514.212.9348 www.ledjit.com