E-Discovery in Canada in 2010

On New Year's Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase "electronic discovery" only once.

The United States Federal Rules of Civil Procedure were amended in 2006 in at least 12 places to specifically refer to electronically stored information in discovery. Thirty states have since followed suit. One Canadian province, Nova Scotia, has also amended its rules.

Now Canada's largest province, home to nearly one-third of the country's population and more than half of its lawyers, has amended its rules of civil procedure in a unique way way that might best be described as either troublingly vague or a stroke of genius. The relevance to U.S. practitioners is this: In many categories of complex litigation, be it in the financial sector, intellectual property or energy, actions that may be in the U.S. Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that "up there" e-discovery is not as far along as in the U.S., think again.

Ontario's amended Rule 29.1.03(4) reads as follows: "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."

That's it. "Electronic discovery" is mentioned only here, within the title of a document that lawyers "shall consult and have regard to."

For observers of the U.S. legal scene, this seems na?ve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession--including its judiciary--a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

Consider this. Aside from the odd fact that a tourist town in Arizona is mentioned in the rules of a Canadian province 2000 miles away, this is remarkable for other reasons. No other jurisdiction has actually mentioned the Sedona Principles or the Sedona Conference by name in its rules. Look at the U.S. federal rules amendments and commentary. You won't find it, though it's a known fact that The Sedona Conference was a key source of input to the U.S. rules committee.

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 a lot of content but not burdensome.

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. 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.

The subrule immediately following is the one telling the parties they "shall consult and have regard to" Sedona Canada. When read in context, the significance becomes clear.

The first principle states, "Electronically stored information is discoverable." A discovery plan that doesn't deal with electronically stored information will violate Rule 29.1. In all likelihood, so will a discovery plan that doesn't take into account the other Sedona Canada principles, such as:

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.

Moreover, as it is the entire 54 page document and not just the list of principles, cursory attention will not suffice. The list 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 document explains what metadata is; it also does a good job explaining in clear and concise terms a lot of the other terminology and issues pertaining to electronic discovery.

The amendments to the U.S. rules have been in effect for nearly three years. Yes, they neatly specify that at the Rule 26(f) meet and confer, the parties discuss the preservation, forms of production and procedures for dealing with inadvertent disclosure of electronically stored information. And yes, they provide a process for requesting a specific form of electronic production, and a procedure for objecting to that requested form, and a default minimum standard for a form of production, under Rule 34(b). And so on.

Yet for all that specificity, we've seen disputes and lawyers getting into trouble. Nothing in the federal rules tells lawyers to read the U.S. version of the Sedona Principles. In all likelihood, this means that most U.S. litigators have not read the Sedona Principles. It might have saved some of them from a lot of trouble. Like Canada's version, it is literate, educational and at 102 pages, not unduly burdensome.

The operative words of the Ontario amendment are "shall consult and [shall] have regard to" the Sedona Canada Principles. Though it sounds polite, this is not a suggestion. It is mandatory language telling lawyers to acquaint themselves with material they need to know.

For additional "teeth", look at Rule 29.1.05: "On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule."

This is in addition to the court's power to impose cost penalties and other sanctions found elsewhere in the Ontario rules, and in its inherent authority. Keep in mind, "costs" in Ontario generally means something much more than in the United States. It means that the losing party will pay a sizeable chunk of the winning party's legal fees. That's a mighty big set of teeth right there.

Active in litigation support and e-discovery since the late 1980s, Cliff Shnier is an attorney and electronic discovery consultant who divides his time between his base in Scottsdale, Arizona and Toronto, Ontario. E-mail him at cliffshnier@cox.net.

Clifford F. Shnier

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