Courts Continue to Deny Access to Hard Drives in eDiscovery Disputes

Courts Continue to Deny Access to Hard Drives in eDiscovery Disputes

Vladyslav (Vlad) Strashko

Associate

 

September 28, 2021

 

Earlier this year, two Canadian court decisions came out that considered the same issue: what is required in order to obtain an order requiring production of hard drives and electronic devices.

 

The first case, Ceballos v. Aviva Insurance et al., 2021 ONSC 4695 (CanLII) came from Ontario. The second case K.K.R. v J.S.R., 2021 BCSC 104 (CanLII) is from British Columbia.  While these decisions came from two different provinces, both courts applied consistent legal approaches and analyses:

 

  1. A computer hard drive is the digital equivalent of a filing cabinet or documentary repository;
  2. 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;
  3. 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;
  4. Speculation alone that the party is not disclosing or is deleting relevant information is not sufficient;
  5. If the order is granted, the inspection should be done by an expert;
  6. The data needs to be reviewed or vetted for relevance and privilege; and
  7. The general rule regarding proportionality would also apply and the court will consider all other remedies first.
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Are Search Terms Producible?

Are Search Terms Producible?

Vladyslav (Vlad) Strashko

Associate

 

August 12, 2021

 

The Ontario Superior Court recently had to address an interesting question: “Are the search terms used to identify relevant documents producible?”

 

In Falsetto v. Salvatore Fillipo Falsetto a.k.a. Sam Falsetto et al., 2021 ONSC 4168 (CanLII), the plaintiff asked the defendant to disclose search terms used to identify documents relevant to the litigation.  In making this request the plaintiff relied on Rule 29.1 regarding the parties’ duty to update the discovery plan and the requirement that the parties have regard to the Sedona Canada Principles Addressing Electronic Discovery when dealing with the discovery plan. … Read More

eDiscovery Preparedness – Data Processing

eDiscovery Preparedness – Data Processing

Candice Chan-Glasgow

Director, Review Services and Counsel

 

July 16, 2021

 

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

What Ontario Courts are Saying about Redaction of Confidential or Sensitive Information

What Ontario Courts are Saying about Redaction of Confidential or Sensitive Information

Catia Amorim

Associate

 

July 13, 2021

 

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

eDiscovery Preparedness – Custodian Interviews

eDiscovery Preparedness – Custodian Interviews

T. James Cass

Manager, Review Services and Senior Counsel

 

July 7, 2021

 

Custodian interviews are an important and necessary part of the identification phase of an eDiscovery project. Early interviews are necessary to develop a proportionate and defensible discovery plan. 

 

The purpose of the interview is to:

 

  • identify the cast of characters,
  • the relevant time periods,
  • the potential sources of electronically stored information (ESI), and
  • confirm that the individuals understand the legal hold requirements.

If custodian interviews are not done there is a risk that the relevant information won’t be preserved and collected or conversely that too much data is preserved and collected. … Read More