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.

Chan-Glasgow contributes to international eDiscovery book

Candice Chan-Glasgow, Director, Review Services and Counsel, has contributed to the Canada chapter of the 2nd edition of International E-Discovery, A Global Handbook of Law and Technology.

Published by Globe Law and Business in association with Legalink, the second edition of International E-Discovery, provides an analysis from across the globe of the different approaches to, and cutting-edge techniques in the use of, digital evidence in legal and regulatory contexts.

Leading technology specialists and legal practitioners in different jurisdictions come together to explain the latest developments in how digital evidence is collected, interrogated and deployed in response to legal proceedings, regulatory investigations, and in order to comply with organizational requirements.… Read More

Tune in to an EDRM Podcast featuring Crystal O’Donnell

Tune in to the EDRM Global Podcast Network and listen to an interview/conversation with our Founder and CEO Crystal O’Donnell.

As part of the EDRM’s (Electronic Discovery Reference Model) educational content program, the organization produces and hosts an extensive series of podcasts to help eDiscovery practitioners improve their overall acumen.

Part of the EDRM Podcast Network is Illumination Zone. Hosted by Mary Mack, EDRM’s CEO and Chief Legal Technologist, and Kaylee Walstad, Chief Strategy Officer, Illumination Zone is a series of interviews and discussions with global leaders in eDiscovery and adjacent disciplines.

Click here to tune in to Crystal’s interview and discussion about her career path to eDiscovery and current issues and trends in Canada.… Read More

Avoid Motion Delays with Heuristica’s Discovery ADR Service

Heuristica’s Discovery ADR Service, provided by knowledgeable and experienced counsel, is a time and cost-effective way to deal with eDiscovery and electronic evidence disputes.

As you know, substantive issues can easily get bogged down in skirmishes about pre-trial discovery. You’ve likely experienced parties who act unilaterally to limit the scope of data preservation, refuse to engage in discussions toward a discovery plan, or refuse to exchange productions in a usable format. Some of these tactics can be part of a broader scheme to delay proceedings or game the rules to advantage. However, whatever the reason, pre-trial discovery issues are often complicated by technical issues that are unfamiliar to counsel, such as forensic capture, metadata extraction, or structured load files.… Read More

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