Recently, the Sedona Conference Working Group 7 published the Second Edition of the Sedona Canada Principles Addressing Electronic Discovery (the "Sedona Principles"). [Link: https://thesedonaconference.org/download-pub/4432]. The Sedona Principles provide guidance on best practices for dealing with electronically stored information with respect to parties' discovery obligations. Litigation counsel and in house counsel will want to acquaint themselves with the new version, as some of the updates will have an impact on how to manage litigation readiness and litigation strategy.
The new edition makes a number of updates to both the Sedona Principles and accompanying commentary. For instance, there is an increased emphasis on early and meaningful cooperation between counsel (Principle 4) and proportionality (Principle 2). Gone is the "meet-and-confer" language of the previous edition, replaced with language that stresses the importance of good faith cooperation to create a discovery plan. The proportionality principle highlights that the cost and effort undertaken in the discovery of electronically stored information should be proportionate to the nature of the litigation, the value of the case, the available evidence, and the probative value of the information in question.
The commentary has been updated as well, and now reference the body of Canadian jurisprudence that has developed since the first edition, which relied heavily on American jurisprudence.
More than Just the Principles
The Sedona Principles were originally published in 2008 with the goal of providing forward-looking guidelines and best practice recommendations for Canadian lawyers, courts, businesses and others. In the relatively short time since, they have become recognized as an authoritative source of guidance by courts and referenced by the Rules of Civil Procedure in Ontario and the Queen's Bench Rules of Court in Saskatchewan. In Ontario, parties are required to comply with the Sedona Principles and failing to do so is a breach of the Rules.1
This post will highlight some of the more practical tools for managing the e-discovery process included in the Sedona Principles:
- Principle 2 – a five-part test for proportionality;
- Principle 4 – a renewed emphasis on cooperation in in developing a joint discovery plan;
- Principle 7 – the importance of technology and processes to satisfying discovery obligations; and
- Principle 11 – the applicability of sanctions for a party's failure to meet its obligations.
Proportionality, a Five-Part Test
The twin cores of the Sedona Principles are proportionality and cooperation. Courts have consistently confirmed that proportionality plays a critical role in case management and e-discovery. In the age of big data, it is exceedingly difficult to deny the importance of proportionality in the discovery process or in litigation generally. However, litigators often ineffectively articulate the substance of this important principle in document motions or fail to support their submissions with relevant evidence. In house counsel often fail to appreciate that a proportional approach can mean the difference between being on budget and over budget.
The revised second principle distills the jurisprudence into a five-part test, providing a useful framework for applying the "reasonableness" principle.
Principle 2: In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account:
(a) the nature and scope of the litigation;
(b) the importance and complexity of the issues and interests at stake and the amounts in controversy;
(c) the relevance of the available electronically stored information;
(d) the importance of the electronically stored information to the Court's adjudication in a given case; and
(e) the costs, burden and delay that the discovery of the electronically stored information may impose on the parties.
The Ontario Bar Association E-Discovery Implementation Committee has developed a useful model document to assist parties in structuring proportionality arguments in document production motions. The model document can be found here.
In house legal departments can consider incorporating these guidelines into their business case for proceeding (or abandoning) litigation.
Cooperate and Collaborate, Not Meet-and-Confer
While the first edition of the principles recommended a "meet-and-confer" process, the working group came to a consensus that the language ought to refer to "cooperation" and "collaboration", rather than "meet-and-confer", emphasizing the principle of ongoing and transparent sharing of information in the development of a joint discovery plan and evolving the concept beyond the restrictive idea of in person of meetings.
Principle 4: Counsel and parties should cooperate in developing a joint discovery plan to address all aspects of discovery and should continue to cooperate throughout the discovery process, including the identification, preservation, collection, processing, review and production of electronically stored information.
Litigators (and clients) are usually reluctant to voluntarily share information with an adverse party. However, the reality is that the documents and information at issue are unlikely to remain secret for very long.
Even if a litigator is reluctant to risk tipping off the other side with respect to the scope of documents in their client's possession, it is certainly in all parties' interest to cut to the chase and try to avoid incomplete production or production in a format that is unworkable or inefficient. In house legal departments should bear in mind that being able to demonstrate an effort to be collaborative will serve them well in future production motions against an uncooperative adverse party.
There are strategic considerations here as well. The principle can be employed as a defence to aggressive pre-trial discovery motions. It is difficult for counsel to force a matter forward in the face of a request to participate in a collaborative effort aimed at creating procedural efficiencies, whether through case management or a more informal process.
Technology. Use It.
The seventh Sedona Principle recognizes that "[m]odern e-discovery tools have progressed to the point where virtually every phase of e-discovery can be made more accurate (in terms of the quality of the results), more defensible (in terms of the processes involved), more efficient (in terms of resources), more speedy and even more cost-effective than in the past."
Principle 7: A party may use electronic tools and processes to satisfy its documentary discovery obligations.
Where possible, when using technology, the principles provide that "parties should agree in advance on (1) the scope of data to be searched; (2) the use of de-duplication software to remove "true" duplicate documents; (3) the search tools to be used (e.g. search terms, concept searching, predictive coding); and (4) the method for validating the results." As with the principle of cooperation, this will require a shift in the way litigators and businesses guard information.
A particular challenge for in house legal departments will often be that the information sought is found in the custody or control of multiple custodians (some no longer with the company), is unstructured, and is strewn across fragmented legacy systems. This is an area where the new Sedona Principles, coupled with the experience of excellent outside e-discovery counsel, can greatly benefit a business, both by reducing the costs of finding the information and by developing a litigation strategy that complies with the Sedona Principles.
Recognizing that agreement is not always possible, the principles provide that "[a]bsent such an agreement, prudent parties should document for the Court the process and methodology used, including decisions to exclude certain types or sources of documents, in the event the approach taken is questioned."
Finally, the eleventh principle highlights the availability of sanctions, which ensure that all parties take their discovery obligations as seriously as a lawyer's ethical responsibilities require.
Principle 11: Sanctions should be considered by the Court where a party will be materially prejudiced by another party's failure to meet its discovery obligations with respect to electronically stored information.
The principle recognizes the importance of distinguishing between penalties imposed on a wrongdoer for deterrent purposes and remedies made available to party who may be prejudiced, even without intent.
1. Palmerston Grain, A Partnership et al. v. Royal Bank of Canada, 2014 ONSC 5134, at para. 45.
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