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Article

Taming the Beast of Electronic Discovery with Sedona Canada Principles

Date

June 30, 2008

AUTHOR(s)

Michael D. Briggs
David Gray
Thomas N.T. Sutton
Andrew Wilkinson


In January 2008, the Sedona Canada Working Group released its final draft of the Sedona Canada Principles Addressing Electronic Discovery, a set of principles appropriate and suitable for electronic discovery in Canada.

Sedona Canada, which comprises lawyers, judges, in-house counsel and government representatives from across Canada, developed these principles using the Sedona Principles from the United States as a guide.

The rapid development and adoption of information technology in the workplace have created significant problems for discovery. Because the legal principles surrounding discovery were developed with paper documents in mind, some of the principles have become either irrelevant or inappropriate for use with electronic discovery.

Today, it has been estimated that more than 90 per cent of all information is created in electronic formats, and strict adherence to traditional principles of discovery will often overwhelm parties in litigation with excessive volumes of documents to be reviewed, leading to greater costs and inefficiencies. Thus, Sedona Canada evaluated the traditional principles in light of the difference between paper documents and electronic information and derived a set of principles appropriate for electronic discovery.

The Sedona Canada Principles are as follows:

  1. Electronically stored information is discoverable.
  2. In any proceeding, parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of 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.
  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 costs 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 preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling or 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.
  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.

Sedona Canada hopes that the Sedona Canada Principles will be adopted by legislators and courts as practice notes or rule changes in order to solve the problems arising from electronic discovery. It is expected that certain provinces contemplating reforms of their rules of court, such as B.C. and Nova Scotia, will adopt the new principles.

McCarthy Tétrault Notes:

Litigants and counsel often face the almost insurmountable task of navigating through mountains of electronic information in connection with document discovery. Further, problems surface in both the production of documents for discovery and the review of produced documents.

In terms of document production, given the volume of information present in any company’s computer systems, it is costly and time consuming to ascertain the scope of production and to determine which documents are privileged and confidential. On the other hand, reviewing documents disclosed in electronic discovery requires significant resources and effort, even if many documents are irrelevant.

The Sedona Canada Principles focus on the need to ensure that only truly relevant electronic documents are produced as part of the discovery process, and that discovery obligations do not overwhelm the litigants. This is linked with the concept of proportionality in determining the scope of production and preservation of electronic documents. The Principles place a greater emphasis on both litigants and their counsel to meet and determine the best approach in electronic discovery. In addition, the Principles modify certain principles of discovery to ensure that electronic discovery does not become overly onerous. The Principles also advocate the use of technology such as search tools and software programs to reduce the volume of duplicate documents, and to reduce the number of irrelevant documents as part of streamlining the electronic discovery process. Finally, the courts are expected to play a significant role in the process by providing directions, where parties fail to agree, and sanctions to punish any party’s failure to satisfy its obligations.

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