When the Discovery Task Force Report was delivered in late 2003, there was a growing awareness of the importance of what is now known as electronic discovery. Lawyers in all areas of practice, not just litigators, need to be aware of electronic discovery, and the implications that electronic documents have in their respective practices and practice areas.
In a number of significant and not always so obvious ways, the discovery of electronic information requires a somewhat different approach from the discovery of paper documents. These include:
- The sheer volume of electronic information (e-mails, documents, databases etc.) that is potentially relevant for discovery purposes is beyond the comprehension of many lawyers and clients.
- Electronic documents and information can easily be deleted, either intentionally or inadvertently, and data thought to be destroyed in the ordinary course can sometimes be recovered, often at considerable cost.
- Collections of electronic data will often contain a mixture of business and private communication.
- The preservation, review and production of large volumes of electronic data can be time consuming and costly, and difficult when there are no standard formats or protocols.
- Protection of privacy and privileged information is much more difficult in the electronic realm.
These issues extend beyond those involving litigators and litigation to many aspects of the operations of business and government. The Discovery Task Force (DTF) concluded that changes to the Rules of Civil Procedure would not be an appropriate mechanism to address all of these issues. The DTF Report recommended the development of best practice/guidelines in various areas of litigation practice. The most prominent of these are guidelines for the retention, disclosure, production and discovery of electronic communications.
e-Discovery issues have been raised in many other jurisdictions, the United States, the United Kingdom and Australia being the most prominent. One interested U.S. group, the Sedona Conference, has promulgated e-Discovery principles.
In 2004, a sub-committee of the Discovery Task Force, Chaired by the Hon. Mr. Justice Colin Campbell, was formed to consider issues relating to electronic information and electronic discovery. To help members of the Ontario bar deal with e-Discovery issues, The Discovery Task Force Sub-Committee created e-Discovery Guidelines or best practices. The e-Discovery Guidelines will be updated as practices develop and evolve. The Committee welcomes input from members of the profession.
All members of the bar and bench are encouraged to take steps to understand electronic documents and discovery, and the implications they have for their law practices and clients. For more information on electronic discovery see this Canadian focused E-Discovery Reading List, which was a supplement to LAWPRO’s Fall 2005 LAWPRO Magazine.
Members of the Sub-Committee have also created a Digest of Canadian (Common Law) cases and Quebec (Civil Law) cases Law Digest dealing with electronic discovery issues. The case law list gives a brief summary of the case extracted from the decision along with a direct link to it in the Canadian Legal Institute (CANLII) collections. CANLII is a public and free virtual law library of Canadian legal materials.
The Committee is also collecting and posting electronic discovery related precedents.