A computer hard drive is the digital equivalent of a filing cabinet or documentary repository;
The production of the hard drive or filing cabinet is very intrusive as it contains a lot of irrelevant data that may be private and confidential;
The order may be given only in exceptional circumstances where there is evidence that a party is intentionally deleting relevant and material information, or is otherwise deliberately thwarting the discovery process;
Speculation alone that the party is not disclosing or is deleting relevant information is not sufficient;
If the order is granted, the inspection should be done by an expert;
The data needs to be reviewed or vetted for relevance and privilege; and
The general rule regarding proportionality would also apply and the court will consider all other remedies first.
After potentially relevant electronically stored information (ESI) has been identified, preserved, and collected, it must be processed. Processing is converting the ESI to a usable format for review and analysis. Before processing the ESI, agreement should be obtained on processing specifications. Many processing decisions are common, and agreement on these issues is generally non-contentious.
One primary decision is how you will deduplicate the data. This is important due to the volumes of duplicate records that are typical for any enterprise. Deduplication will reduce the volume of documents that will need to be hosted in a review platform and ultimately reviewed for relevance. … Read More
The Superior Court of Justice recently reiterated the test to be met when it comes to redaction of otherwise relevant documents.
In Marsella v. BDBC, 2021 ONSC 3276, a wrongful dismissal case, the plaintiff sought production of unredacted copies of certain documents in the defendant’s Schedule A. The documents at issue were created during an internal investigation which led to the plaintiff’s dismissal and contained the names of non-parties to the litigation.
Arguing for disclosure, the plaintiff posited that there was no evidence to show that the redacted information was sufficiently confidential or sensitive in nature that disclosure would result in “significant harm or prejudice” to BDBC or any non-parties. … Read More