Director, Document Review Services
December 19, 2017
In a previous blog post “Estates in the Digital Age: Debunking E-Discovery Myths in Estate Litigation” we discussed the application of electronic evidence principles to estate litigation, and noted that electronic discovery principles are not limited to large scale commercial disputes. A recent Ontario Superior Court of Justice decision demonstrates, once again, that eDiscovery spans multiple areas of law.
In Leitch v. Novac, 2017 ONSC 6888, the Applicant, Jennifer, filed an application for, amongst other things, spousal support, child support, and equalization of net family property. The parties separated on September 29, 2012 after approximately 15 years of marriage. Jennifer alleged that the respondent (“Anthony”), conspired with his father (“Michael”) to use various trusts and corporate vehicles to conceal his income with the intention of minimizing support obligations. She further alleged that Anthony’s business interests were intermingled with Michael’s business interests through a private family-owned group of companies collectively known as Sonco. In relation to her conspiracy claim, Jennifer sought further production of emails from Michael and/or Anthony to employees at Sonco from January 1, 2012 onwards.
Lerners, counsel for Michael, collected 420,000 emails from six custodians, including Michael and Anthony and other Sonco employees. This collection was deduplicated and then reduced by setting aside documents identified as spam and documents over which privilege was claimed. Rosen Sack, counsel for Anthony, was then provided access to this reduced database of 124,724 documents. Rosen Sack directed Lerners to run keyword searches that, in its view, would capture all the relevant and producible documents. The keywords reduced the database to 28,380 documents. Rosen Sack then performed a further search for privileged documents and removed 66 documents on the basis of privilege, and a further 1,187 personal emails. It then advised the parties that the remaining 27,127 documents could be disclosed to Jennifer.
Jennifer challenged the extent of the disclosure and strongly objected to the keyword searches as a means of identifying relevant documents:
I can think of many examples of emails off the top of my head that would be relevant to this part of my conspiracy claim that would not have been captured by Rosen Sack’s search terms. For example, Anthony could have sent an email to Michael or Mr. Landzaat (Sonco’s CFO) that said “transfer my share of the buy-out proceeds to this account until my divorce with Jen is over”. Both of those emails would be highly relevant to my conspiracy claim, but not captured by Rosen Sack’s search terms.
Anthony has a tendency to use short forms and nicknames, which would not be captured in the above search terms. For example, during his questioning in the Spring of 2016, Anthony referred to the 2013 Trust as “2013” and as “13”. When asked by Epstein Cole if “13” was his nickname for the 2013 Trust, Anthony replied “I think maybe it’s what I’ve been calling it”. However, neither “2013” or “13” were included in Rosen Sack’s list of search terms ?
As another example, with respect to the OLG Gaming Bundle, Rosen Sack did not include the search terms “OLG”, “bundles” or “RFP” (Request for Proposals)”, which are much more obvious search terms than “Modernizing Land Based Gaming in Ontario”. Again, at his questioning in the Spring of 2016, Anthony referred to OLG breaking the province into “bundles” when explaining the OLG Gaming Bundles to my counsel. ?
In his decision, Justice Faieta notes that the Sedona Canada Principles, particularly the principle of cooperation in developing a discovery plan, would have assisted the parties in managing the email disclosure. He went on to find that:
In my view, it is clear that the list of search criteria used by Michael, albeit at Anthony’s direction, to identify relevant documents on the basis of certain terms associated with certain projects was too limited to capture all relevant documents. As a result, Jennifer’s request for production is not a “fishing expedition” [?] A more reasonable and practical approach was adopted by Rosen Sack in respect of the other custodian collection whereby Lerners excluded from production those documents over which solicitor-client privilege or litigation privilege was claimed by use of certain search terms followed by Rosen Sack reviewing the remaining 34,821 documents over the course of one or two days to exclude irrelevant and personal matters as well as privileged communications with additional search terms.
In the result, Justice Faieta ordered Michael to produce the 124,724 emails, subject to removing any privileged documents and personal communications between Anthony and his new live-in partner.
This case ably highlights some of the problems with keyword searching, and reinforces that keyword searching alone is not a reliable way of identifying all relevant documents. Supplementing keyword searching with analytics can identify relevant documents that would be missed by keyword searching alone.