Recently, the Sedona Conference® published the second edition of the Sedona Canada Principles Addressing Electronic Discovery[1] (the “Principles”).
The Principles provide guidance on best practices for dealing with electronically stored information (ESI) with respect to parties’ discovery obligations. The original version of the Principles, published in January 2008, are referenced in the Ontario Rules of Civil Procedure requiring parties to consult and have regard to the Principles in preparing their discovery plan.[2] Crystal O’Donnell, the founder of Heuristica Discovery Counsel is a contributing editor to the second edition.
There are a number of updates to the Principles and commentary, including an emphasis on the overarching principles of early and meaningful cooperation between counsel (Principle 4) and proportionality (Principle 2). The emphasis on good faith cooperation to create a discovery plan replaces the former “meet-and-confer” language from the original version. The proportionality principle highlights that the cost and effort undertaken in the discovery of ESI should be proportionate to the nature of the litigation, the value of the case, the available evidence, and the probative value of the information in question.
It should also be noted that the commentary has been updated to reference Canadian jurisprudence. In 2008, there was very little case law in Canada regarding electronic discovery and as a result the first edition referred to American jurisprudence.
The Principles can apply to all cases, regardless of size, and the guidelines are flexible and should be adapted to each individual case. Best practices for large corporations may differ from what is expected of an individual plaintiff. Lawyers have a professional obligation to understand the unique nature of ESI and how to manage the challenges. There can be serious consequences for mishandling ESI during the discovery process and it is important to have appropriate and defensible practices in place.
Heuristica Discovery Counsel is a boutique legal practice focused on electronic discovery, evidence management, and related litigation and legal services.
For more information:
Crystal O’Donnell: crystal@discoverycounsel.ca
Candice Chan-Glasgow: candice@discoverycounsel.ca
Disclaimer:
This article is made available by Heuristica Discovery Counsel Professional Corporation for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. The article should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.
[1] The Sedona Conference, The Sedona Canada Principles Addressing Electronic Discovery (November 2015), online: The Sedona Conference <https://thesedonaconference.org/download-pub/4432>.
[2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 29.1.03(4).
