Generally, every party to a lawsuit is required to list all "records" (the physical representation or record of any information, data or other thing that is or is capable of being represented or reproduced visually or by sound, or both) in its possession that are relevant and material to the issues in the lawsuit. If a party fails to do so, or destroys such a record, it may face serious consequences, ranging from orders to pay the costs of the other party, to adverse inferences being drawn against it and even the striking out of its pleadings.
E-Discovery is a hot topic in litigation in Canada, mostly as a result of recent developments in the U.S. It generally refers to all the issues relating to production of electronic records, rather than paper documents.
Dealing with this technical aspect of a case properly can be the difference between winning and losing in court.
E-discovery requires careful strategic planning at an early stage - often even before commencement of formal legal proceedings. Since e-discovery can severely impact the ongoing business operations of a party, it is very important to consider strategies for the identification, preservation, collection, review and production of electronic records with counsel as soon as possible. This can help preserve important evidence and determine the most cost-effective and least disruptive way to meet production obligations.
INDENTIFICATION OF SOURCES OF RECORDS
As technology continues to develop and to be applied in business and communications, the number of potential sources of electronic records continues to grow. These sources may include computer hard drives, servers, web-based emails, text messages from instant messaging conversations, personal computers, personal digital assistants, electronic calendars and a variety of portable devices like Blackberries, pagers, cell phones, and even iPods.
Because of the many potential sources of electronic information and the different types of data that can be stored, it is very important for a business to retain counsel early in the litigation process to determine the scope of record production that will be required, so that IT staff and/or consultants can be advised.
PRESERVATION OF POTENTIALLY RELEVANT MATERIALS
Not only the actual electronic "document" may be relevant. A party must be aware that meta-data (information recorded by the system about an e-document), residual data (information stored on a computer even after a document has been deleted) and replicant data (information created when a software program creates back-up files of an open file) may also be relevant and material and may have to be identified, preserved and produced.
Preserving records relevant and material to the issues arising in the litigation should begin before most other steps are taken in the litigation.
Opposing counsel will often send a preservation letter to a business or its counsel advising that there may be e-records relevant to the litigation and asking that these records be preserved. Destruction of relevant e-records could lead to claims for spoliation and could result in adverse inferences being drawn by a court against the offending party. These adverse inferences may be enough to tip the scales against the offending party in a case where the prospects of success are evenly balanced otherwise.
To avoid these consequences, parties in consultation with counsel should implement a "litigation hold" on any document retention and destruction policies.
REVIEW OF DOCUMENTS
The courts have clearly stated that a party to an action has a duty to review all its records for relevance and privilege. Because of the sheer number of electronic records that are often involved, the task of analyzing all potentially relevant records can be burdensome. There are ways to reduce this cost, however. The use of litigation management software and the advice of knowledgeable counsel can greatly assist.
Unlike paper documents, production of e-records can be made through hard copies of the records or by producing the records in electronic format. Electronic production is probably the most appropriate where it will minimize the cost, preserve the integrity of the data (including the metadata), provide more complete information and facilitate access to the information. Litigation management software allows for the exchange of electronic lists and records in a database.
E-Discovery is relatively new in Canadian legal practice, but it is developing rapidly. It is something with which every litigant must contend.
By taking a well-planned, pro-active approach, with the assistance of legal counsel, parties can meet their legal obligations, avoid costly production errors and keep litigation expenses to a minimum.
At Fasken Martineau, we have the expertise to ensure that you are ready to deal with the challenges of the electronic age in the context of litigation.
1 Mr. Rudd is an Associate, and Mr. de Waal is Associate Counsel in the Litigation Department in the firm's Calgary office. Both Mr. Rudd and Mr. de Waal are members of the firm's National Complex Litigation Practice Group.
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.