Rethinking Reliability of Digital Evidence

Partner

April 30, 2026

Digital evidence often looks authoritative. A system-generated report, an email chain, a spreadsheet, or a chat export can appear objective and complete. But in litigation, the real question is not whether digital evidence looks reliable. It is whether its reliability can be proven.

As litigation becomes more data-heavy, and as AI-generated or AI-assisted content becomes more common, the reliability of digital evidence deserves closer attention. A digital record is not trustworthy simply because it looks technical, precise, or system generated. Its reliability depends on the system that created it, the controls that preserved it, and the surrounding information that allows it to be tested.… Read More

Deepfakes and the Evolving Duties of eDiscovery Counsel

Martin Felsky

Senior Counsel

April 28, 2026

The long-standing view that electronic discovery and disclosure can be treated as purely procedural or technical exercises distinct from the law of evidence is no longer tenable. That position was already difficult to sustain in an era of emails and databases. It becomes untenable in the age of synthetic media.

E-discovery (and here I use the term broadly to include disclosure in criminal and regulatory procedure) is about shaping the evidentiary record. What is preserved, collected, filtered, and produced defines what may ultimately be tendered in court. A small but critical subset of that material will be relied upon as evidence.… Read More

Amazon Canada Decision – Ten Lessons to be Learned

Martin Felsky

Senior Counsel

January 20, 2026

Large-scale production orders are no longer exceptional. What is surprising is how often sophisticated litigants underestimate what courts now expect when those orders arrive. The Federal Court’s recent decision in Commissioner of Competition v Amazon.com.ca ULC, 2025 FC 1782, arises in a competition-law investigation under the Competition Act. But it would be a mistake to read it as confined to that regulatory context. The Court’s reasoning reflects expectations that increasingly apply across complex civil litigation, particularly cases involving large-scale electronic production. In substance, this is a decision about modern litigation discipline.… Read More

Why PDFs Can Sink Your Case – Preserving Individual Emails the Right Way

Martin Felsky

Senior Counsel

September 15, 2025

The portable document format (PDF) was a breakthrough for the legal profession. It allowed lawyers to share contracts and pleadings in a consistent, easily readable format regardless of the software used to create them. For preserving the appearance of a document, PDF remains an excellent tool.

However, litigation is not only about appearance. It is about substance, history, and context. When a document, especially an email, is converted into PDF, critical metadata is stripped away. That metadata can include the creation date, transmission details, recipients, and other fields that may prove vital to a case.… Read More

Reconsidering the Presumption of Reliability for Digital Evidence in Canadian Law – A Cautionary Reflection on the UK Horizon Scandal

Martin Felsky

Senior Counsel

The Canadian legal framework for the admissibility of electronic evidence is grounded in a presumption that digital records generated or stored by a functioning electronic system are reliable. Codified in sections 31.1 to 31.8 of the Canada Evidence Act (CEA), this presumption was introduced in 2000 to accommodate the growing volume of digital records and to promote efficiency in legal proceedings.

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