An Introduction to E-Discovery in Ontario

What is e-discovery, and why should you care about it?

E-discovery is far more than a buzzword bandied about by tech-savvy litigation lawyers. It can and will have serious implications for all individuals and businesses that may in the short future find themselves before Ontario's Courts.

It is important to be aware that e-discovery's ambit could be very wide indeed.

Before very long, Ontario courts will be answering questions like these:

• Whether a copy of the entire disk drive of an employee's personal Blackberry must be produced in an employer's lawsuit, if the employee has used the Blackberry for communications that are central to the litigation?
• Are the entire contents of an individual's computer and his or her Facebook and MySpace accounts producible in certain kinds of court proceedings, like child custody proceedings where an individual's character and personal behaviour are relevant?
• What will the consequences be for a company that destroys or disposes of hard-drives on computers that have been used for the creation of documents that are subject of court proceedings?
• What proof will be required to authenticate emails and other digital documents?
• How deeply will a litigant who contests such authenticity be permitted to sniff into an opposing party's hard drive to look at meta data and other digital information that lives inside the back-end of all software loaded on our desktops, laptops and mobile devices?
• How will otherwise confidential communications that turn up on hard-drives be treated, and what protections will the Courts offer such communications?

In an era in which the digital divide between personal and professional is shrinking, e-discovery may well define the relationships we will all be able to have with our digital devices at home and workplace. It will have implications for privacy, enormous potential costs for businesses in terms of document management requirements, and cause increased complexity and cost in Ontario litigation.

Yet it is here.

In December 2006 the United States' Federal Rules of Civil Procedure were amended to include specific provision for electronic discovery. Subsequent litigation has addressed many of the concerns mentioned above.

Soon, e-discovery rules will formally arrive in Canada. To a large extent, however, the production and discovery of digitally-stored information is already the rule in Canadian courts.

Why e-discovery then, and what does it mean for Ontario businesses and individuals?

Background

In every lawsuit commenced in Ontario, each party is legally required at a very early stage in the proceeding to provide disclosure to all other parties of every relevant document pertaining to the case that is in the possesion, power or control of the litigant.

Until recently, compiling documents for disclosure in litigation was often time consuming, but rarely complicated.

The combination of human diligence, a litigant's filing cabinet and a robust photocopier was generally adequate to get this critical job done. The format was paper. The litigant's primary challenge was simply to find it all.

Keeping track of the "paper," however has now become considerably more complex. Because most of that "paper" is no longer "paper" at all.

Today, in both commerce and personal life, virtually all documents are digital in origin. Many, if not most, are never printed. Documents may have been edited along the way, with changes tracked using word processing technology such as Microsoft Word. Often, they are created, delivered, saved and archived in digital form only.

Yet any or all of these document types may need to be produced in a lawsuit.

The burgeoning Web 2.0 world is only adding to the complexity. Relevant emails may only be found on a Blackberry. Messages or even wall posts on Facebook could contain critical information. A contract may have been completed enirely online. Websites offering certain relevant services, such as online job searches, may not allow any easily accessed, compiled digital record at all.

In a judicial system that requires disclosure by litigants of everything that is relevant in a case, it has become increasingly necessary for the Courts to adapt to the prevalence of new services, communication methods and document-creation technologies, to ensure that litigants have access to complete disclosure of documents from opposing parties.

And thus, our long-standing requirement of documentary discovery in lawsuits is rapidly evolving into the complex task of e-discovery.

Electronic discovery has been defined as follows:

“Electronic discovery” refers to the discovery of electronically stored information, including email, web pages, word processing files, computer databases, and virtually any information that is stored on a computer or other electronic device. Technically, electronically stored information is “electronic” if it exists in a medium that can be read through the use of computers or other digital devices. Such media include cache memory, magnetic disks (such as computer hard drives or floppy disks), optical disks (such as DVDs or CDs), and magnetic tapes. Electronic discovery can be distinguished from “paper discovery,” which refers to the discovery of writings on paper that can be read without the aid of electronic devices.

Ontario's Current Rules

Ontario's Rules of Civil Procedure provide comprehensive guidance as the extent and scope of the required documentary disclosure.

The general requirements are set out at Rule 30:

30.01 (1) In rules 30.02 to 30.11,

(a) “document” includes a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form;

30.02 (1) Every document relating to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (1).

Production for Inspection

(2) Every document relating to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document. R.R.O. 1990, Reg. 194, r. 30.02 (2).

As you will note, data and information in electronic form are already discoverable in Ontario, under Rule 30.01, which includes these formats in the definition of document.

In September, 2007, in the Ontario case of Hummingbird v. Mustafa, Master Sproat ordered the production by one party to another of a mirror copy of an entire hard drive, based on a liberal interpretation of that Rule.

A comprehensive digest of case law to date on e-discovery issues in Canada is maintained by the Ontario Bar Association.

The Future of E-Discovery in Canada

The Ontario Bar Association's Discovery Task Force E-Discovery Guidelines and Resources portal has very succinctly set out the complexities of e-discovery:

In a number of significant and not always so obvious ways, the discovery of electronic information requires a somewhat different approach from the discovery of paper documents. These include:

• The sheer volume of electronic information (e-mails, documents, databases etc.) that is potentially relevant for discovery purposes is beyond the comprehension of many lawyers and clients.
• Electronic documents and information can easily be deleted, either intentionally or inadvertently, and data thought to be destroyed in the ordinary course can sometimes be recovered, often at considerable cost.
• Collections of electronic data will often contain a mixture of business and private communication.
• The preservation, review and production of large volumes of electronic data can be time consuming and costly, and difficult when there are no standard formats or protocols.
• Protection of privacy and privileged information is much more difficult in the electronic realm.

There are numerous technical and practical challenges in codifying e-discovery processes. These include:

• The spiraling variety of sources, hardware and media formats from which electronically stored information may be collected. These include storage files for popular applications like the Microsoft Office suite of products, records in databases, emails stored on both business and private mail servers, documents and records on handheld devices, one's Internet browsing history and entries placed on blogs, social networking sites and other external websites.
• The need for searching active data, archival data and backup data depending on the source and the purpose of litigation.
• The production of hidden data such as meta data, residual data or replicant data which may be classified as "document" for discovery purposes if it can readily be compiled into viewable form. These hidden forms of data may play an important role in determining an e-document’s authenticity.
• The preservation of electronically stored information which may be hindered by the constant updating of systems and files.
• Cost and time issues associated with the process of manually searching through electronically stored information for relevant documentation.Whether electronically stored information should be converted and produced in a standardized format or delivered in its native format, for cost and time savings.

The Sedona Canada Group was formed as an outgrowth of an American think tank made up of lawyers, law professors and legal experts to study the implementation of e-discovery in Canada.Building on the United States' model of standardized federal rules respecting e-discovery, it described its mandate as follows:

“Sedona Canada,” was formed out of the growing recognition that the discovery of electronically stored information can no longer be seen as a peculiarity of litigation in the United States or limited to complex commercial lawsuits in Ontario and British Columbia. It is quickly becoming a factor in all Canadian civil litigation, large and small. It requires universal understanding by the Canadian bar and a common approach rooted in proportionality and reasonableness, with respect for variations in local rules and practices. We hope that the principles and commentary that follow will be of immediate benefit to the bench and bar as they approach this cutting-edge intersection of law and information technology. It is our expectation that Sedona Canada will benefit greatly from the public comment process.

In February 2007, it articulated 12 draft principles relating to e-discovery. The group proposes that these principles form the foundation of Canada's e-discovery procedures of the future:

1. Electronically stored information is discoverable.
2. In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.
3. Counsel and parties should meet and confer as soon as practicable and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.
4. As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.
5. The parties should be prepared to disclose all relevant electronically stored information that is reasonably accessible in terms of cost and burden.
6. A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information.
7. A party may satisfy its obligation to identify electronically stored information in good faith by using electronic tools and processes such as data sampling, searching and/or the use of selection criteria to collect potentially relevant electronically stored information.
8. Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process.
9. During the discovery process parties should agree to, or if necessary, seek judicial direction on, measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.
10. During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums.
11. Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.
12. The reasonable costs of preserving, collecting and reviewing electronically stored information will be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.

It is expected that a variation of the Sedona Guidelines will ultimately be incorporated into the Ontario Rules of Civil Procedure. Based on increasing necessity, however, their influence may spread long in advance of such formal codification.

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In upcoming posts we will take a closer look at e-discovery and how Courts, businesses and the legal profession have addressed the challenges it raises.

- Garry J. Wise and Annie Noa Kenet, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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