Jaar Dominic Platt William Power Point Final

The Sedona Canada Principles

Addressing Electronic

Document Production

Dominic Jaar

William Platt

December 5th, 2007

LA GESTION STRATÉGIQUE et L’ADMINISTRATION PRATIQUEDE DOCUMENTS ÉLECTRONIQUES

Sedona Canada

Sedona Working Group 7 (“Sedona Canada”) meets at Mont Tremblant in May 2006

Sedona Canada works by email and teleconference June 2006 through February 2007 to produce Public Comment Draft

English language version of Public Comment Draft published in February 2007, French language version anticipated in May 2007

Public comments accepted through August 15, 2007 Second Sedona Canada meeting in September

2007 in the Rockies


Sedona Canada

Participants include lawyers, judges and experts from across Canada

Members adopted the Sedona Dialogue model to create guidelines that are useful to Canadian lawyers practising in the Canadian legal environment in all jurisdictions


Introduction

What Is Electronic Discovery? An approach to the identification, preservation, collection,

processing, review, and production of electronically stored information (potentially relevant to existing or anticipated litigation)

What Rules Govern Electronic Document Production in Canada? How Are Electronic Documents Different from Paper

Documents? Volume and Duplicability Persistence Inadvertent Ease of Destruction Metadata Dynamic, Changeable Content Accessibility: Environment-Dependence and Obsolescence Dispersion and Searchability


Introduction (cont.)

Why Do Courts and Litigants Need Standards Tailored to Electronic Discovery?

How Can Courts and Litigants Use Precedent from the Context of Paper Discovery in the Context of Electronic Documents? Sameness: Find Analogy from Paper Discovery Difference: Eschew Precedent from Paper Discovery Where

Appropriate Translation: Applying Media-Neutral Rules in a Context-Specific

Way Diversity of Canadian Discovery Rules


Principle 1

Comment 1.a. Definition of Electronically Stored Information

Comment 1.b. E-Commerce Legislation and Amendments to the Evidence Acts

Electronically stored information is discoverable.


Principle 2

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.

In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account:

Comment 2.a. The Proportionality Rule


Principle 3

Comment 3.a. Meet Early and Often Comment 3.b. Who Should Attend Comment 3.c. Preparation for the 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 4

Comment 4.a. Scope of Preservation Obligation Comment 4.b. Preparation for Electronic Discovery

Reduces Cost and Risk Comment 4.c. Response Regarding Litigation Preservation Comment 4.d. Notice to Affected Persons in Common Law

Jurisdictions

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.


Principle 4 (cont.)

Comment 4.e. Preservation in the Province of Quebec Comment 4.f. Preservation Heroics Not Necessarily

Required Comment 4.g. Preservation Orders Comment 4.h. All Data Does Not Need to be “Frozen” Comment 4.i. Disaster Recovery Backup Media Comment 4.j. Potential Preservation of Shared Data


Principle 5

Comment 5.a. Scope of Search for Reasonably Accessible Electronically Stored Information

Comment 5.b. Forensic Data Collection Comment 5.c. Outsourcing Vendors and Non-Party

Custodians of Data

The parties should be prepared to disclose all relevant electronically stored information that is reasonably accessible in terms of cost and burden.


Principle 6

Comment 6.a. The Scope of the Search

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.


Principle 7

Comment 7.a. Use of Targeted Selection to Focus Discovery

Comment 7.b. Processing Techniques to Reduce Volume

A party may satisfy its obligation to identify electronically stored information in good faith by using electronic tools and processes such as data sampling, searching and/or the use of selection criteria to collect potentially relevant electronically stored information.


Principle 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.


Principle 8

Comment 8.a. Production of Electronic Documents and Data Should be in Electronic Format

Comment 8.b. Agreeing on a Format for Production Comment 8.c. Document Lists – Format and

Organization


Principle 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.


Principle 9 (cont.)

Comment 9.a. Inadvertent disclosure Comment 9.b. Sanctions Comment 9.c. Use of Court Appointed Experts to

Preserve Privilege Comment 9.d. Protection of Privilege Regarding a

modified “Claw-back” Production Comment 9.e. Document Lists – Lawyer Work

Product Comment 9.f. Protection of Confidentiality Comment 9.g. Privacy Issues


Principle 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.


Principle 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.


Principle 11 (cont.)

Comment 11.a. The Need for Sanctions Comment 11.b. Canadian Experience to Date with

Sanctions Comment 11.c. American Experience with

Sanctions Comment 11.d. Sanctions for Non-Disclosure Comment 11.e. Reasonable Records Management

Policies


Principle 12

The reasonable costs of preserving, collecting and reviewing electronically stored information will 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.


Questions and Comments?

For a free download of The Sedona Canada Principles for personal use:

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

Encourage all to participate in the review and critique of the draft with the goal of making it useful and truly reflective of the Canadian legal experience.

Public comments may be submitted using the online form

Jaar Dominic Platt William Power Point Final

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