Article by William Horton, ©2005 Blake, Cassels & Graydon LLP
This article was originally published in Blakes Bulletin on Litigation - May 2005
Documents are the heart of every case. We tend to rely on documents as producing an objective record of events, especially documents deliberately made as a memorial of a meeting or other event. Documentary evidence can have frailties, but we generally prefer a written record to simple personal memory, which can be unreliable and subjective, most particularly when dealing with matters well after the event.
In litigation, the most effective evidence is admissions by the other side or damaging statements made by the other side in their own documents. Very probative evidence can be derived from written internal communications, especially when they were made without the expectation that they would be read by an opponent.
Computer technology has brought a myriad of opportunities to litigation counsel. Electronic communication can be a bonanza in that the continuous and multilateral nature of the communication creates a multidimensional context whose speed and informality encourages unguarded communication, the ease and proliferation of which generates a stream of consciousness record.
This bonanza has only grown through the widespread use of Palm Pilots, Blackberries, cell phones and other handheld devices. There is an expectation of privacy by the users of these devices, which often renders the communications even more unguarded.
Expectation of Privacy
Whatever the user’s expectation of privacy, the reality is that most of this communication is traceable and largely retrievable. The advantage for one in pursuit of this information is that it is hard, especially for amateurs, to hide or tamper with the records without leaving a trail. With computer-based communication, typically multiple copies reside on multiple computers and each of these computers creates logs of activity such as the deletion and copying of data. Furthermore, an individual attempting to delete data is often unaware of the multitude of ways that files are archived and is therefore not sufficiently sophisticated to keep that data from the hands of someone skilled at retrieving such information. Those skilled in computer operation understand the role and application of meta data, information about the information stored on the computer. It is this very meta data which can serve to render the information more reliable, as the meta data on the computer allows validation of time and sequence relating to the information.
Extracting Data From The Mountain
As with every bonanza, the bounty of computer information has its costs. There is typically a huge volume of data to deal with. Extracting the key and relevant information requires a very clear search strategy, specialized equipment and personnel skilled at using it. Furthermore, as with any blind search, you never know what you will turn up and, worse yet, what may work against you.
Computerized information has its challenges for a party to litigation. For instance, it can be extremely difficult to make full disclosure in urgent situations, such as an ex parte injunction, simply due to the sheer volume of material to be retrieved, and it can be difficult to separate out relevant information from irrelevant information when making production. In using this material, it may be necessary to consider obligations regarding the rights of third parties as it relates to personal privacy or customer information. There can also be problems with the chain of custody of information and its corruption or with the loss of data based on improper handling.
The obligations of a party regarding production of computerized records are that there is a need to preserve and produce helpful records and to avoid evidentiary prejudice or possible tort liability (spoliation) by non-preservation of records.
As one can imagine, this production obligation in many circumstances can be totally disproportionate to the monetary value of the case. In those situations, one would strive to have both sides take a reasonable approach but that is not always possible in real time "investigations".
In a serious case, a party must have a strategy for dealing with computer-based records and that party should have support from experts with state of the art technology. Counsel wants to ensure that the other side is approaching the matter in the same fashion. In that regard, if necessary, it may even be appropriate to offer the other side facilities to ensure full capture of their computer-based data.
If there is any concern about the other side destroying or concealing computer-based data, counsel should consider seeking a civil search warrant that orders the other side to submit their computer hard drives to court-appointed experts who will preserve the evidence.
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.