In January, the Federal Court of Canada set aside
document-production orders issued to the Competition Bureau
under section 11 of the Competition Act in connection with the
Bureau's review of the Labatt/Lakeport merger. Recent media
reports have focused on the implications of the decision for
the Bureau, its internal procedures and the reputation of its
senior management. But the decision also highlights the
Bureau's regular use of production orders in merger, cartel
and other investigations.
The cost implications of section 11 orders for Canadian
businesses are significant. Labatt is reported to have spent
more than $750,000 to respond to an earlier order in the
Labatt/Lakeport review. In some cases, compliance costs can be
much higher. Implementing a comprehensive document retention
policy (DRP) can be a low-cost proactive way to lower the
potentially high costs of court-ordered document production.
DRPs are also an essential component of any company's
litigation preparedness planning.
DRPs establish guidelines regarding the organization,
management and retention of documents and electronic records on
the basis of statutory obligations to retain certain classes of
documents, business need and protection against future
The flip side of retention is destruction: DRPs also provide
for the systematic destruction of documents on expiry of
statutory and discretionary minimum retention periods.
Documents that have no further value to an organization but
that remain in the "pool of documents" that must be
reviewed as part of the document-production process can greatly
increase document-production costs. Examples include electronic
documents (such as emails) that, while of no probative value,
may "technically" be responsive to broadly worded
production orders and that, in many organizations, can number
in the thousands or millions of pages over multiyear periods.
Destroying these documents on an ad hoc basis –
particularly in advance of a likely regulatory review or
litigation – can raise serious suspicions. Properly
implemented and applied, a DRP can eliminate the basis for
these suspicions in a manner that will also reduce compliance
If you would like to discuss how to implement an effective
DRP for your organization, please contact us at your
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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