Transcript Discovery of Electronically Stored Information

New Decade, New Rules:
Discovery of Electronically Stored
Information in Ontario 2010 and
beyond
May, 2010
Presentation by
Clifford F. Shnier, JD
President, esi Specialists Inc
Ontario Rule 29.1.03(4)
• “In preparing the discovery plan, the parties
shall consult and have regard to the
document titled “The Sedona Canada
Principles Addressing Electronic Discovery”
developed by and available from The Sedona
Conference.”
– The current Sedona Canada Principles may be
downloaded from The Sedona Conference
website, http://www.thesedonaconference.org.
This is the cover of
that document
And this is Sedona…
Not just the list of principles, the whole
document!
• Notice that the document referred to in Rule
29.1.03(4) is not simply the list of enumerated
principles, but the entire publication, 54 pages in
length.
That’s it ?!? That’s all Ontario has to say ?
• “Electronic discovery” is mentioned only here, in
R. 29.1.03 (4) within the title of a document that
lawyers “shall consult and have regard to.”
Contrast to the 2006 US Federal Rules
– These rule changes affect Rules 16, 26, 33, 34, 37,
45 and Form 35.
• (Statutory authority: 28 USC §2072-2074)
– In each of those rules, electronically stored
information is specifically mentioned.
Only Ontario actually mentions “Sedona”
The Sedona Conference in the US
promulgated the set of principles
that formed the basis for the
amendments to the US Federal Rules
of Civil Procedure.
Yet neither the US FRCP nor any
other jurisdiction except Ontario has
actually mentioned the Sedona
Principles or the Sedona Conference
by name.
The context: the discovery plan
• Now take a step back and look at the context
around this one subrule, the broader “discovery
plan” rule 29.1 This rule requires the parties to
litigation to agree upon and file with the court a
written discovery plan within 60 days after the
close of pleadings.
• The net effect is similar to US FRCP 26(f).
Ontario Subrule 29.1.03 (3) states:
•
•
(3) The discovery plan shall be in writing, and shall include,
(a) the intended scope of documentary discovery under rule
30.02, taking into account relevance, costs and the importance
and complexity of the issues in the particular action;
• (b) dates for the service of each party’s affidavit of documents
(Form 30A or 30B) under rule 30.03;
• (c) information respecting the timing, costs and manner of the
production of documents [under Rule 30.01(1) “documents”
includes electronic data] by the parties and any other
persons….
• (d) any other information intended to result in the expeditious
and cost-effective completion of the discovery process in a
manner that is proportionate to the importance and complexity
of the action.
Sedona Canada Principle 1
• 1. Electronically stored information is
discoverable.
– A discovery plan that doesn’t deal with electronically
stored information will violate Rule 29.1.
– In the US, the discoverability of electronically stored
information is specifically stated in Rule 34 and
elsewhere, but it had been black letter case law since
at least as early as 1995.
Other Sedona Canada Principles that, if
ignored, may violate Rule 29.1
• Principle 3, which states that parties must consider their
obligation to take reasonable and good faith steps to
preserve potentially relevant electronically stored
information as soon as litigation is reasonably
anticipated.
• Principle 4, which states that parties and counsel should
meet and confer soon and on an ongoing basis.
• Principle 8, which states that the parties should agree
early on the format in which electronically stored
information will be produced.
• Principle 9, which states that the parties should agree on
or seek judicial direction to protect privilege and
confidentiality.
You can’t “headnote” this!
• It is the entire 54 page document that is
incorporated by 29.1.03(4) and not just the list
of principles, cursory attention will not suffice.
• Example: Metadata
– The list of principles does not mention metadata.
However, in the discussion under Principle 8, we find
at page 30: “The parties should strive to agree on a
methodology of production that (a) preserves
metadata and allows it to be produced when
relevant.”
The US experience after three years
• Lawyers are still
getting into a lot of
trouble for ediscovery errors!
• Qualcomm S.D. Cal 2008
• Bray & Gillespie v
Lexington M.D. Fl. 2009
• U of Montreal Pension
Fund v Banc of America
S.D.N.Y. 2010
“Shall” is not politeness. It is a mandate.
• The operative words of the Ontario amendment are
“shall consult and [shall] have regard to” the Sedona
Canada Principles.
Epilog:
Sedona Canada Principles 1-3
• 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. 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.
Epilog: Sedona Canada Principles 4 - 6
• 4. 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.
• 5. The parties should be prepared to produce 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.
Epilog: Sedona Canada Principles 7-9
• 7. A party may satisfy its obligation to preserve, collect, review and
produce electronically stored information in good faith by using
electronic tools and processes such as data sampling, searching
or by using 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.
Epilog: Sedona Canada Principles 10-12
• 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 generally 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.
Contact
www.esispecialists.com
Telephone: 416.363.3370
416.844.7028
Tollfree:
1.877.298.3374
Toronto and Ottawa
eDiscovery
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