Estates in the Digital Age: Debunking E-Discovery Myths in Estate Litigation

All aspects of life are increasingly affected by the proliferation of advances in technology. Wills and estates are no exception.

One of the results of the growth of digital assets and online communications is the evolution of evidence that is required for estate litigation and estate administration. Virtually all evidence, unless it is a handwritten note, physical evidence or witness testimony, is now electronic in its original format.

Heuristica’s Crystal O’Donnell (along with co-author Holly LeValliant) have just published the first of a series of articles on the Trusts and Estates Law section of the Ontario Bar Association website.… Read More

Collaborative Discovery Required

In Thompson v Arcadia Labs Inc, the plaintiffs brought a motion for relief requesting, among other things, several orders related to discovery. The plaintiffs are consultants that provided services to the defendant cybersecurity firm.

The parties did not agree on a protocol for exchanging documents, which resulted in unilateral attempts to satisfy production obligations. Master MacLeod, as he then was, (Master MacLeod was recently appointed a judge of the Ontario Superior Court of Justice) found that parties cannot take a unilateral approach to production and that cooperation is critical for defensibility and proportionality.

During the course of their business relationship, the plaintiffs created documents for the defendants, which were uploaded to a website.… Read More

English High Court Endorses Predictive Coding

In two recent decisions, the English High Court has approved the use of predictive coding in the discovery process.

The English Cases: Pyrrho & BCA Trading

In Pyrrho Investments Ltd v MWB Property Ltd., released in February 2016, both parties agreed to its use. On May 17, 2016, in an unreported decision^[1], the High Court granted BCA Trading, a defendant, an order permitting them to use predictive coding despite the plaintiff’s objection. Counsel for BCA Trading argued that a manual review would be disproportionate in cost, and that predictive coding would be more accurate.

These decisions follows similar decisions in the US in 2012 (Da Silva Moore v Publicis Groupe) and Ireland in 2015 (Irish Bank Resolution Corporation Ltd & ors v Quinn & ors).… Read More

Update: EU-US Privacy Shield Faces Sharp Criticism

In March, we discussed the proposed EU-US Privacy Shield in our blog.

At the time, the EU and US had just reached an agreement in principle and the European Commission (EC) released a draft “adequacy decision” regarding the proposed framework. The Privacy Shield is a regulatory framework designed to enable US companies to comply with strict EU digital privacy laws. It replaces the invalidated “Safe Harbour” agreement.

In the intervening months, several EU institutions expressed dissatisfaction with the proposed Privacy Shield. On April 13^th, the Article 29 Working Party published a critical opinion stating that the EC had overlooked “key data protection principles”.… Read More

Court Orders Production of Files in “Usable” Format

On May 24^th, the Alberta Court of the Queen’s Bench ruled that, in certain circumstances, meaningful disclosure requires the production of native electronic files.

Background and Arguments

In Bard v Canadian Natural Resources,[1] the plaintiffs brought a motion requesting, amongst other things, that the court order the defendants to deliver native Excel spreadsheets. The defendant had provided the data in TIFF image files as agreed to by the parties in the discovery plan. The plaintiffs claimed that TIFFs were not a “usable” format.