Discovery in the Yukon

Associate

October 20, 2021

A recent decision, Chance Oil and Gas Limited v Yukon (Energy, Mines and Resources), 2021 YKSC 44 (CanLII) , provides a good window into the discovery process in the Yukon.

In this case, both sides filed applications to compel each other to meet their document discovery obligations. The plaintiff claimed that the defendant grossly under-produced by listing only 445 documents in its affidavit of documents. The defendant alleged that the plaintiff, in contrast, overproduced by listing over 34,000 documents, some of which were not relevant.

First, the court pointed that the expression “every document relating to any matter in issue in an action” relating to disclosure obligations in Rule 25 of the Rules of Court has been given a broad and liberal interpretation by the courts.… Read More

eDiscovery Preparedness – Technology Options

Crystal O’Donnell

Chief Executive Officer and Senior Counsel

October 13, 2021

Proactive management of electronic information is one of the best ways to minimize costs and risks associated with eDiscovery. This includes enterprises making decisions on the appropriate approach to managing eDiscovery based on needs, volume and resources available.

Over the last few years, the options available to enterprises to manage eDiscovery needs have changed considerably. The choices of available technology have increased, the functionality available has improved (and continues to improve), and the options for purchasing the technology have also changed.

While there is a wide spectrum amongst the below list, generally speaking, enterprises have the following options for managing eDiscovery:

Outsourcing
In-House
Hybrid

Outsourcing

Many enterprises leave all aspects of eDiscovery to external litigation counsel to manage as part of the litigation, including the decision to further outsource the eDiscovery work to vendors. … Read More

Is a De-activated Social Media Account Producible?

Harry Chang

Associate

October 6, 2021

The recent US decision in Brown v. SSA Atl., LLC, CV419-303 (S.D. Ga. Mar. 15, 2021) emphasizes the importance of understanding what constitutes spoliation in the context of social media evidence.

The plaintiff in this case was evasive about his social media presence on Facebook. The defendant initiated a motion for sanctions for “alleged spoliation of electronically stored evidence, specifically his social media accounts.” The court denied the spoliation motion ruling based on the lack of evidence that the Facebook information had been “irretrievably lost.” Instead of sanctions, the court directed the production of the Facebook accounts as an alternative remedy.… Read More

eDiscovery Preparedness – Review Technology

Candice Chan-Glasgow

Director, Review Services and Counsel

October 4, 2021

The discovery process is typically the most time-consuming and expensive aspect of any legal dispute. Fortunately, by adopting appropriate technology and best practices, parties can achieve significant cost savings in the review process. This article will outline functionality that is available and should be used in every discovery project involving electronic evidence.

Email Threading

Email threading is now considered a basic tool that should be employed on every discovery project. Email threading groups the conversation that happens back and forth in email and identifies the “end points” (or “inclusive emails”). … Read More

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:

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.