The existence of litigation or an administrative investigation
creates unique obligations for a party with respect to its
documents, both paper and electronic. The term "document"
includes virtually any form of recorded information, including the
more traditional types of documents such as handwritten notes,
agreements, invoices, memorandums, and emails to emerging forms of
electronic information such as metadata, Internet history logs,
temporary Internet files and websites.
This is the first in a series of blogs regarding these
obligations focusing on the importance of preservation.
The proliferation of electronic information has impacted and
changed what is required of parties to comply with three discrete
the obligation to preserve potentially relevant and material
the obligation to identify all relevant and material documents;
the obligation to collect all relevant and material
Once the information has been identified and collected, your
lawyer will be able to review and produce the documents in
accordance with the disclosure and production requirements in the
Rules of Court or administrative rules.
While your lawyer will be able to assist its clients in
satisfying these obligations, you must be aware that you will be
required to invest time and effort into understanding IT practises
and creating an efficient and practical plan to preserve, identify
and collect relevant and material electronic documents.
The consequences for failing to properly preserve information
can be serious in the litigation and administrative law context. In
litigation, spoliation may contribute to an adverse finding by a
court or a finding of contempt (which can result in fines and jail
time) (Victor Stanley, Inc. v Creative Pipe, Inc. No.
MJG-06-2662, 2010 WL 3703696 (D. Md. Sept. 9, 2010)). Under the
Securities Act (Alberta), for example, the destruction of
information or property constitutes obstruction of justice and an
offence under the Act, with penalties ranging from a fine of no
more than $5 million or imprisonment of not more than five years
(Securities Act, RSA 2000, c S-4 at ss. 93.4 and 194). As a result, we recommend that all our clients
understand their obligations and ensure that preservation steps
receive sufficient care and attention.
A party is required to preserve, in their original format, all
documents that could reasonably be expected to be potentially
relevant and material to the litigation or administrative
investigation. To satisfy the preservation obligation, we recommend
that every party implement a litigation hold promptly once a
litigation issue is identified or the company determines that an
administrative investigation is likely to be undertaken (which
could be weeks or months before legal counsel is retained).
A litigation hold is a formal notice to the affected individuals
(employees or third parties) containing details about the
information covered by the litigation hold and directions regarding
To implement a litigation hold, your lawyer will require your
cooperation and that of your IT services. These parties will
develop a plan to identify individuals and locations in which
potentially relevant and material information may be stored. Your
lawyer will also work with your IT services to review and modify IT
processes that may automatically archive or delete this
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).