Early in 2013, the international community voted to begin a new
project – the development of an international standard for
electronic discovery. The proposal for the international standard,
referred to as “ISO/IEC 27050 - Information technology
– Security techniques – Electronic discovery”
(“ISO/IEC 27050”), was put forward by an American
delegation to an international subcommittee of information
technology and standards experts in Annapolis, France. Six months
later, I participated on behalf of Canada in a boardroom in
Incheon, South Korea as ISO/IEC 27050 was discussed by members of
the international standards community. We decided to create a
four-part 27050 standard:
1 - Overview and Concepts;
2 - Guidance for governance and management of electronic
3 - Code of Practice for electronic discovery; and
4 - ICT readiness for electronic discovery.
What is E-Discovery?
ISO/IEC 27050 aims to put in place internationally-recognized
standard procedures and practices for the stages in a process
commonly referred to as “e-discovery”. The stages of
the e-discovery process are generally believed to include the
identification, preservation, collection, processing, review,
analysis and production of electronically stored information. The
challenges associated with e-discovery include the huge volumes of
electronic information in the possession or control of most
companies, the ease with which electronic documents are duplicated,
transferred and dispersed, the dynamic and changeable nature of
electronic information, difficulties with respect to disposal of
electronic information when desirable, and the fast pace of
technological change which can render obsolete the hardware and/or
software required to review electronically stored information.
Why Should You Care about an E-Discovery Standard?
There may be legitimate differences of opinion as to whether an
International Standard in e-discovery is possible to achieve or
even appropriate. That being said, if ISO/IEC 27050 becomes a
published International Standard through recognized international
protocols, it is difficult to imagine that Canadian companies and
their service providers, especially those engaged in cross-border
transactions, court proceedings or regulatory proceedings, will be
able to ignore its guidance.
International standards are often referenced in cross-border
contracts. Indeed, the raison d’être of the
international standardization process is to facilitate
international commerce. Further, international standards can affect
judicial decision-making in Canada even where the parties did not
contemplate the applicability of international standards. More
particularly, courts may take into account international standards
when determining whether a party’s conduct was objectively
“reasonable” so as to escape liability for alleged
wrongdoing. In my view, ISO/IEC 27050 may well impact Canadian
courts’ views as to reasonable e-discovery conduct.
What is the Timeline for an International E-Discovery
In April, I will spend a week in Hong Kong, as the e-discovery
subject matter expert to Standards Council of Canada, to negotiate
and draft the working drafts for the four-part standard. It is my
hope that this work will result, in two years’ time, in
internationally recognized, practical best practices to help
Canadians deal with the vast amounts of data they are forced to
contend with when involved in litigation and regulatory
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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