New Decade, New Rules:Discovery of Electronically Stored

Information in Ontario 2010 and beyond

May, 2010Presentation by

Clifford F. Shnier, JDPresident, 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 e-discovery 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.

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