Courts Continue to Deny Access to Hard Drives in eDiscovery Disputes

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:

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.

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

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

U.S. Court Shifts eDiscovery Costs to Plaintiff

Candice Chan-Glasgow, Director, Review Services and Counsel

August 28, 2020

In a rare cost shifting order out of the United States, Lawson v. Spirit Aerosystems (D. Kan. June 18, 2020), the Kansas District Court granted defendant, Spirit Aerosystems, Inc’s motion to shift the costs of a technology-assisted review to the plaintiff, Larry A. Lawson. This case is a helpful reminder to litigants that the eDiscovery process must be proportionate to the needs of the case and that pursuing unnecessarily broad requests can lead to cost consequences.

Lawson is Spirit’s former CEO who retired on July 31, 2016. … Read More

Court of Appeal Weighs-in on Relevance and Privilege

Candice Chan-Glasgow, Director, Review Services and Counsel

August 20, 2020

A recent Court of Appeal of Alberta decision, Tolton v Tolton, 2020 ABCA 218, provides a helpful reminder on the law of relevance and waiver of privilege.

Betty Tolton and Elwood Tolton separated in 1990, and Betty filed for divorce in 2002. The Toltons entered into minutes of settlement in 2007 which contained a provision indicating that Elwood was required to disclose further information related to a dispute about certain assets and accounts receivable. In 2008, Betty filed an application seeking disclosure of the items listed in the minutes of settlement. … Read More