Canadian Compliance for Electronic Discovery (eDiscovery)

There is a growing acknowledgement of the importance of electronic discovery (eDiscovery). All lawyers including internal corporate counsel need to be aware of eDiscovery expectations, requirements, and the implications that electronic documents have in their respective practices and practice areas. 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 British Columbia. It is quickly becoming a factor in all Canadian civil litigation, large and small. It 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. The North America based Sedona Conference has published The Sedona Canada Principles.

The Sedona Canada Principles “Addressing Electronic Discovery in Canada” are listed below:

Principle 1: Electronically stored information is discoverable.
Principle 2: In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court's adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
Principle 3: 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.
Principle 4: 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.
Principle 5: The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.
Principle 6: 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.
Principle 7: A party may satisfy its obligation to preserve, coll ect, 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.
Principle 8: 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.
Principle 9: 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.
Principle 10: 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.
Principle 11: 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.
Principle 12: 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.

If your organization has yet to implement or prepare a system which conforms to these new requirements, it is at a clear disadvantage. Email and file system information is widely used as evidence in civil trials, and chances are good that one day your company will be asked to search its email or file system for specific information that's needed in litigation.

The Need for eDiscovery

As companies move from paper-based communications and transactions to digital equivalents, email and other online collaboration documents become prime targets for electronic discovery (eDiscovery) in trials. Those companies that currently rely on backup tapes, simple search tools, or manual processes will find out the hard way the difficulty in retrieving the precise data required for litigation.

Backup tapes, which are crucial in restoring a system to its current state, were not created for information retrieval. Most have limited or non-existent search capabilities and lack an indexing system that allows them to produce precise information when requested. Companies that rely solely on backups for litigation must consider the implications of their decision.

Integrity of Data in Litigation

The reliability and correctness of the information produced for trials is as important as the information itself. Archived records must be protected against false tampering and its integrity must be verifiable.

User Deleted Documents

When faced with a discovery request, inadvertent document and email deletion is not a reasonable defense for a company's failure to produce the requested information. Canadian companies are expected to be able to react to a discovery request quickly and fully when required. This includes protecting potentially responsive data as soon as a legal action can be reasonably anticipated.

Timeliness and Accuracy of Data

When legal requests for specific data are made, companies that rely solely on backup tapes are usually forced to perform manual searches that are risky, time-consuming and whose results are not guaranteed. Enterprises that fail to preserve or produce all relevant electronic information in a timely fashion could be faced with adverse rulings, negative publicity and punitive damages reaching millions or billions of dollars.

The Mimosa NearPoint archive and eDiscovery Option

The Mimosa NearPoint archive and eDiscovery Option provides a powerful, real-time email and file system discovery capability that captures and efficiently searches the NearPoint archive to produce the documents required for litigation. Auditors and legal staff can use eDiscovery from their desktop to retrieve, prepare and export court-ready documents in a fraction of the time of even the most powerful tape backup retrieval options.

Using the eDiscovery Option, search queries can be easily constructed to:

Target specific mailboxes and file systems;
Pinpoint exact dates or date ranges; and
Perform full-text, Boolean and advanced Boolean search of email, file attachments and office files.
Place Litigation Holds on responsive documents

In addition, the NearPoint Continuous Application Shadowing™ capability provides full message and file indexing at capture, so powerful search queries and searches within searches can be created to locate all types of Exchange and file system objects, including messages, attachments, calendar entries, contacts, notes and file attributes.

Those companies that proactively prepare for litigation will greatly reduce their discovery cost and risk when litigation happens.

Links:

eDiscovery Canada

The Sedona Canada Principles