In Bard v. Canadian Natural Resources
(Bard), the Court of Queen's Bench of Alberta (Court)
ruled that certain documents were to be produced in native format,
despite what was set out in a discovery agreement between the
parties. Following the Court's ruling in Bard,
litigants should consider how they want to produce, receive and use
documents early on in a case, to avoid additional motions.
DOCUMENT PRODUCTION: WHAT ARE THE OPTIONS?
In litigation, parties often enter into discovery agreements and
one of the items addressed is how documents are to be produced. It
is important to think about how you will want to use documents
early on in a case and before deciding on how they will be
produced. In general, there are two common formats for the
production of documents:
The first is in TIFF format. A TIFF is a tag
image file format, which is a scanned copy of the document. The
text in these documents can be searched, but there is little other
usability for the file.
The second is in native format, which means
the document is produced in the form it is maintained on the
producing party's systems. An Excel document is produced in
Excel format. A Word document is produced in Word format. These
documents are fully searchable and for documents like Excel, you
can sort and filter the documents' contents.
There is a movement in the legal community to produce all
documents in native format. The Sedona Canada Principles recommend
that electronic documents be produced in native format when
possible. The Sedona Canada Principles aim to aid members of
the Canadian legal community when dealing with the identification,
collection, preservation, review and production of electronically
BUT DIDN'T THE PARTIES HAVE AN AGREEMENT?
The parties in Bard had entered into a discovery
agreement to produce the documents as TIFF files, but the
plaintiffs then sought an order compelling the defendants to
produce the documents — primarily Excel and other
database-type documents — in their native format.
The defendants argued they had complied with the discovery
agreement and had no obligation to produce the documents in any
other format, but the Court disagreed. Since the production
of Excel documents (and other similar types of documents) as TIFF
files means you cannot search them, sort them, or manipulate the
data in any way, the Court held that not producing them in their
native format meant the plaintiffs were not given meaningful access
to relevant material records.
The case is illustrative of the movement towards producing
documents in native format.
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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