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Best practices for the whole country

|Written By Christopher Guly

Next month, a small group of lawyers and judges from across Canada will meet in Kananaskis, Alta., to put the final touches to legal guidelines for the electronic discovery process in this country.

Best practices in the electronic discovery process will turn into case law by being cited in court as they’re used, says Glenn Smith.

“Where there is no case law, these best practices could be cited in court,” says Toronto commercial litigation lawyer Glenn Smith, who serves on the Sedona Canada editorial committee. “If a judge likes that best practice, he incorporates that into case law, and next time there’s a case on the same point, a judge or lawyer can cite that case.”

In February, the Sedona Canada group circulated a draft document to judges, lawyers, law societies, and legal experts for feedback on 12 e-discovery principles. In September, the Sedona Canada committee will “take another run at revising them to the extent we need to,” says Smith, a senior and founding partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto.

The principles are:

•    electronically stored information (ESI) is discoverable;

•    parties in any proceeding should ensure steps taken in the discovery process are “proportionate” and take into account such aspects as the nature and scope of the litigation, the relevance of the available ESI, its importance to the court’s adjudication in a given case, and “the costs, burden and delay” that may be imposed on the parties;

•    counsel and parties should meet as soon as possible - and regularly - regarding the “identification, preservation, collection, review, and production” of ESI;

•    parties must take “reasonable and good faith” steps to preserve “potentially relevant” ESI “as soon as litigation is reasonably anticipated”;

•    parties should be prepared to disclose all relevant ESI “that is reasonably accessible in terms of cost and burden”;

•    absent agreement or court order “based on demonstrated need and relevance,” a party should not have to search for or collect deleted or residual ESI;

•    electronic tools and processes, such as data sampling, searching, and/or the use of selection criteria, can be used to identify “potentially relevant” ESI;

•    parties should agree “as early as possible” in the litigation process on the format in which ESI will be produced - and come to terms with the format, content, and organization of information to be exchanged;

•    during the discovery process, parties should seek judicial direction on measures to protect privileges, privacy, trade secrets, and other confidential information relating to the production of electronic documents and data;

•    parties should also “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”;

•    the court should consider imposing sanctions when “a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review, or produce” ESI - unless the party in default has demonstrated the failure was not “intentional or reckless;” and

•    “the reasonable costs of preserving, collecting and reviewing ESI will be borne by the party producing it - though 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.”

The impetus to establish e-discovery principles for Canada was inspired by the experience in the United States where, nearly five years ago, a group of jurists, lawyers, law professors, and legal experts huddled in Sedona, Ariz., to develop principles and best-practice recommendations for electronic document retention and production.

“It’s unbelievable what’s happened in the U.S. - American judges and the bar have embraced the Sedona guidelines,” says Susan Wortzman, a partner with Lerners LLP in Toronto who was invited to serve on the e-document working group for the American law and policy institute, the Sedona Conference.

Recognizing that similar guidelines were required for Canada, the Ontario Task Force on the Discovery Process, chaired by Superior Court Justice Colin Campbell, established a subcommittee to deal with electronic information and e-discovery in 2004 and which included Smith and Wortzman.

In 2005, that e-discovery subcommittee released 13 guidelines or best practices for the legal profession in the province.

“Lawyers are governed by rules of civil procedure, but it’s only been in the last three years most jurisdictions have recognized that electronic data must be produced,” says Smith.

“When a lawsuit is started, you have to produce documents and every jurisdiction has different rules as to how you produce those documents.”

The Ontario principles were intended to provide lawyers in the province with some guidance on the e-discovery process, which is becoming so costly that it’s “killing the civil trial,” says Campbell.

“One of the problems is that, by the time parties go through the discovery process, they can’t afford to go to trial and either cave in and make a settlement they don’t like or reach some other out-of-court process that compromises the case,” he explains.

“In a lot of situations, people go away from the system unhappy - and that may be both sides.”

Broadening the idea of developing e-discovery principles for the entire country came after the U.S. Sedona group contacted Campbell and members of his task force to solicit interest in the idea of forming a national committee.

“It met with our approval,” says Campbell. “We have to work across Canada and across borders too, and companies and organizations have to know what electronic information they have to keep and for how long, and with respect to requests for electronically stored information.”

In May 2006, a group of about 25 lawyers, judges, and legal experts from different parts of Canada met in Mont-Tremblant, Que., to talk about creating e-discovery guidelines - not, as is the case in the U.S., rules that aren’t as flexible in Campbell’s opinion.

“The Americans wanted to call our guidelines the ‘Tremblant principles,’ but since 30 per cent of our group are francophones from Quebec, we didn’t think having principles called ‘shaky’ would be a good thing,” jokes Smith.

But reflecting Quebec’s civil-law reality in the proposed guidelines created a challenge, he says.

“Their discovery rules are completely different than any other province, so when you read through our guidelines, there’s often a separate section that deals with Quebec.”

In February, the Sedona Canada group, co-chaired by Wortzman and Peg Duncan, an information specialist with Justice Canada in Ottawa, released the English-language version of its draft guidelines for discussion. The French-language version followed in the spring.

But even before the e-discovery principles are released some time later this year, they are already in use - but not, so far, in Ontario, from where they had their genesis.

British Columbia has made reference to them in the province’s rules of civil procedure, while Alberta and Nova Scotia are quickly following suit, according to Campbell.

He says that a forthcoming report on civil justice reform, prepared by retired Ontario Court of Appeal associate chief justice Coulter Osborne, is expected to include reference to the Sedona Canada e-discovery guidelines.

Says Campbell: “The hope and expectation is to cut down on case law by having lawyers, first of all, and then judges say this makes sense.”

Smith, who has been involved with e-discovery for the past decade, expects that within three years, once Ontario’s rules for civil procedure are updated, “some or all of” the Sedona principles will be incorporated in them in some fashion, such as a practice direction.

And with jurists, such as Campbell, championing e-discovery, he believes the example of embracing the process will come from the bench.

Says Smith: “I think judges will move into it faster than lawyers.”

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