E-discoveryE-discoveryA Survival Kit

Presented by: Dominic Jaar, legal counselBell Canada (Beaudin Legault)

Presented to:Air TransatLegal Department

E-discovery?•Discovery of electronic data/documents:

•“Electronic documents include e-mail, web pages, word processing files, computer databases, and virtually anything that is stored on a computer. Technically, documents and data are “electronic” if they exist in a medium that can only be read through the use of computers. 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 is often distinguished from “paper discovery,” which refers to the discovery of writings on paper that can be read without the aid of some devices.”*

* The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document

Discovery

Document– Ontario: Rules of Civil

procedure, s. 30.01 (1)• Sound recording• Video tape• Film• Graph• Photograph• Chart• Map• Plan• Survey• Book of account

• Data and information in electronic form

– Quebec: An act to establish a legal framework for information technology, s. 3

• Information inscribed on a medium.

• The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images.

• The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

Electronic document vs. Paper

Virtual Intangible and not printed (90%)

Prolific Duplicate rapidly (without user awareness)

Volatile Change without user awareness

Free ranging

Stored in places unknown to user

Persistent Deleted and hidden files, replicant, residual and reminiscent data, etc.;

Metadata Data about data

Metadata

Format• Office suite: Word, Excel, PowerPoint, etc.

• E-mail

• Instant Messaging

• Web page

• Database

• Image

• Video

• Audio recordings (VOIP)

• …

• Paper

Location• Hard drive (office, home, portable, scanner, printer, etc.) • Cellular phone and PDA• Digital camera and MP3 player • Server• Mainframe• CD and DVD• Disk and Tape• USB Key• Voice messaging system• Online collaboration / Web 2.0 (Blog, Wiki) • …

Volume

• How to find the relevant information?

Hardware Gigabytes

Pages Boxes

1 75,000 40

Lap/desktop

40-200 3,000,000 -

15,000,000

1600 - 8000

Server 200-10,000

15,000,000

1600 – 40,000

Who is the custodian / witness?

« Say! When did I start reporting to my computer terminal? »

The Sedona Canada Principles

Adressing Electronic Discovery

Electronic Discovery Reference Model

Copyright 2005-2007. Socha Consulting LLC and Gelbmann & Associates.

The Sedona Canada Principles•Principle 1: Discoverability•Electronically stored information is discoverable.

•Principle 2: Proportionality•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.

•Principle 3: Preservation•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.

The Sedona Canada Principles•Principle 4: Meet and Confer•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.

•Principle 5: Accessibility•The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.

•Principle 6: Deletion•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.

The Sedona Canada Principles•Principle 7: Fight fire with fire•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.

•Principle 8: Format of production•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.

•Principle 9: Confidentiality•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.

The Sedona Canada Principles•Principle 10: Interjurisdictionality•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.

•Principle 11: Sanctions•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.

•Principle 12: Costs-shifting•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.

E-discovery Canada Portal

http://www.lexum.umontreal.ca/e-discovery/

How will courts deal with:• Document Retention Policy• Inadvertent destruction• Spoliation• Sanctions

Document Retention Policy

• Only legal way to reduce the volume of potentially relevant information?

Inadvertent destruction

« Oops! I just deleted all your files.Can you repeat everything you’ve ever told me? »

Spoliation

« Destroyed without my knowledge »

Sanction

• Costs shifting• Exclusion of:

– Exhibits– Testimonies

• Adverse inference• [St-Louis c. The Queen (1896), 25 R.C.S. 649]

• Dismissal• Tort of spoliation

E-evidence…

Weighting technological credibility

Resources• E-discovery

• Canadian E-discovery Portal• The Discovery Task Force on E-Discovery Guidelines and Resources Pa

ge• The Sedona Conference• Craig Ball• Discovery Ressources• Wines and Information Management• Moteur de recherche spécialisé

• Information Management

• Federal Chief Information Officers’ Council• General Counsel Roundtable • National Archives and Records Administration• ARMA International