One of the key components of conducting civil litigation in
British Columbia is the production and discovery of documents by
each of the parties to the lawsuit. The parties are required,
both at common law and under British Columbia's Supreme
Court Civil Rules, to produce relevant documents in their
possession or control which bear on the issues in the lawsuit.
Lawyers in British Columbia are ethically obligated, as officers of
the Court, to ensure that all relevant documents are produced by
their clients – even if those documents are harmful to their
client's case. Production and discovery of documents is
typically the first substantive step in civil litigation, and it is
not unusual for commercial cases in particular to turn almost
entirely on the documentary evidence.
"Documents" in this context, however, are more than
just physical pieces of paper. The Supreme Court Civil
Rules and the caselaw that has developed interpreting those
rules have created a very expansive definition of
'documents'. Significantly, electronically stored
information of all kinds is subject to discovery and production in
a lawsuit, so long as it is relevant to the issues. This can
include e-mails, PDF files, spreadsheets, draft electronic versions
of documents, databases, audio and video recordings, electronic
calendars, text messages, social media content, photographs,
diagrams – the list goes on. With the proliferation of home
and office computers, network servers of all sizes, mobile phones,
tablets, laptops, digital media players, social media and cloud
computing platforms, memory cards, digital cameras, and flash
storage drives, it can be challenging to identify all potential
sources of relevant electronically-stored information. In addition,
where in the past paper documents were subject to being lost or
destroyed, it is now highly unlikely that electronically-created or
stored documents will not exist somewhere on someone's hard
drive, in their e-mail inbox, or on a backup server. It is
therefore critical that all potential sources of electronic
evidence be identified, searched and reviewed early in the
It is also important to bear in mind that electronically-stored
information also includes unseen 'metadata' that, in some
instances, may end up becoming more important to
the case that the original content. Metadata can provide important
information about an electronic document, such as how, when and by
whom it was created, accessed or modified. Depending on the
circumstances of the case and the nature of the
electronically-stored information (and its relationship to the
issues), the metadata associated with the documents may itself be
subject to production. Often this can be accomplished by producing
the document in its 'native' electronic format; however,
care must be taken to ensure that the original metadata is
Since commercial cases in particular often revolve around the
documentary evidence, it is critical to ensure that electronic
documents and other evidence are properly located, preserved,
reviewed, and produced. It is important to ensure that steps are
taken at the very outset of a lawsuit to ensure that electronic
documents are identified, preserved and properly harvested for
production purposes. A clear e-discovery plan implemented at the
outset of litigation can save significant time and expense later
on, and it is important to ensure that information technology
professionals are available to assist in the process of collecting
and preserving electronic information.
Finally, corporations and other institutional bodies are
well-advised to ensure that they have an established document
retention protocol that allows 'litigation holds' to be
implemented in order to ensure that electronic evidence is not
inadvertently altered, lost or destroyed. Litigants should bear in
mind the following comments from the Ontario Superior Court in a
2003 case, in which the Court criticized the defendant company for
failing to preserve documents relating to the plaintiff's
employment: "[A] properly run company should have a documents
retention policy requiring retention of files for a reasonable
period extending beyond the limitation action for civil causes of
action in contract or tort."
While the scope of electronic discovery can seem daunting (and
can in fact be daunting on particularly document-intensive or
complex files), the process can be efficiently and effectively
managed by taking early, pro-active steps to ensure
electronically-stored information is properly identified, collected
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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