Document Discovery and Native Documents – Document Production Must be “Usable”

The recent Alberta case of Bard v. Canadian Natural Resources, 2016 ABQB 267 provides a road map for compelling the production of native electronic documents in “usable” form.

In the underlying claim, the plaintiffs alleged that the defendants (“CNRL”) had improperly accounted for credits and debits deposited to an account, which determined the plaintiffs’ (“Devon”) share of the proceeds from a joint oil sands project.

In court, Devon sought the native production of a number of categories of documents including, spreadsheets, electronic financial database records, certain financial records and other documents requested by Devon’s expert.

CNRL resisted the production on the basis of materiality and relevance. CNRL also argued that the documents had already been produced in a “usable” TIFF format and, importantly, CNRL had complied with the agreed upon document production protocol.

Devon countered that one-thousand-page-long TIFF representations of spreadsheets were not capable of being manipulated and analyzed efficiently and omitted relevant metadata and formulas present in the native files.

In granting Devon’s requested order, the Court held that document production must be meaningful in the circumstances. In the age of dynamic multi-dimensional electronic documents, this will often mean in native format. With respect to the Excel spreadsheets, the underlying formulae with their mathematical formulas intact was "the only way to be certain as to how certain cells were calculated. These formulas would help to significantly prove facts directly in issue, e.g. that certain costs were or were not indirectly charged to the Carried Account and/or that those costs were miscalculated."

The potential requirement to produce native documents should be kept in mind when considering the preservation of dynamic documents in connection with litigation, particularly where changes to metadata or programmatic information could occur.
The decision provides a number of takeaways for litigants advancing or opposing the production of native documents:

  • Documents in native format may be compellable, notwithstanding that they have been produced in a different format (e.g. PDF or TIFF) and/or in compliance with an agreed upon document production protocol.
  • Full databases such as financial databases may be compellable, even where summaries of the relevant data have been produced.
  • A party seeking the production of native documents should provide evidence of the necessity of the documents and the deficiencies of the existing production.
  • A party defending the production of native documents should provide non-speculative evidence of the costs of producing the documents being sought.
  • An independent expert’s opinion with respect to documents required for their analysis is compelling.

Whether advancing or defending such an application, Principle 2 of the Sedona Canada Principles provides a useful structure for such applications. The principle sets out that document production should be proportionate, taking into account:

  • the importance and complexity of the issues and interests at stake and the amounts in controversy;
  • the relevance of the available electronically stored information;
  • the importance of the electronically stored information to the Court’s adjudication in a given case; and
  • the costs, burden and delay that the discovery of the electronically stored information may impose on the parties.

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