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More on Canada and E-discovery
Although e-discovery is a challenging process in any country, I believe that Canada has done a better job of controlling runaway costs related to e-discovery.
Christine Taylor
May 12, 2009
2 Min Read
In a recent post I wrote a very brief introduction to e-discovery in Canada. I work closely with e-discovery technologies and trends in the American judicial system and was intrigued by the differences between e-discovery in these national court systems.
I was glad to receive a comment on the post from Canadian e-discovery expert Peg Duncan, who clarified some of my remarks. Peg is one of the people who developed the e-discovery guidelines for the province of Ontario. She is deeply involved in Sedona Conference WG7 (Sedona Canada) as a member of the Steering Committee. Peg wrote that the Judicial Council's practice direction for civil eDiscovery was less concerned with activities like meet-and-confer and more concerned with activities related to production.
"... The judicial guidelines are less about electronic discovery than they are about electronic production - i.e. getting the documents to the other parties and into court in electronic form, whatever format they may have been stored in."
Fair enough. Production -- and presentation too -- are valid e-discovery stages as per the EDRM model. They can also be complex undertakings, and require clear communication and lines of responsibility between parties.
We agreed on Sedona's proportionality principles.
"You are absolutely right about the focus of the Sedona Canada principles on proportionality. In Ontario, it is being built right into the rules, and there's a direct reference to the Sedona Canada Principles."
Proportionality should be a fundamental consideration in any e-discovery project. In the U.S. it is practiced in part as attorneys can plead undue burden. But all too often American attorneys attempt to use disproportionate e-discovery requests like a crude if effective club. I cannot agree more that instituting proportionality principles -- preferably with teeth -- is an excellent move in the right direction in the U.S. as well.
Finally Peg pointed out that Canada does not experience the same level of e-discovery abuses as the U.S.
"Where I would disagree, however, is with the statement that there are frequent e-discovery abuses. Our judges often refuse 'requests for further production.'"
I agree and did not mean to imply otherwise. Although e-discovery is a challenging process in any country, I believe that Canada has done a better job of controlling runaway costs related to e-discovery. The U.S. Bench seems farther along than the Bar, but we are getting there. Slowly. Where this issue is concerned, e-discovery technology can be immensely helpful in controlling e-discovery costs while still doing the best for one's client.
Finally I am happy to share Peg's link to eDiscovery Canada's case law digest: http://www.lexum.umontreal.ca/e-discovery/digests-common.html
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