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(1)

The New Nightmare – Discovery of

Electronic Information in

Civil Litigation

Presented to: CURIE

Presented by: Thomas Donnelly,

Thomas Gold Pettingill

(2)

Surprise!

• An unexpected letter

(3)

Counsel’s Preservation Wish List

1. All e-mails, including message contents and logs of e-mail usage;

2. All databases and spreadsheets;

3. All electronic calendars;

4. All voicemails;

5. All storage devices including computers and mini-computers;

6. All back-up and archives, including floppy disks from 1989;

(4)

Ignorance is not Bliss

• You roll your eyes and ignore the letter

• But beware of

Zubulake

ƒ

Employee discrimination case

ƒ

jury instructed to assume that some unpreserved and

unrecoverable e-mails would have harmed the

defendant’s case

(5)

What are E-Documents?

• Documents that are electronically stored and read with an electronic device

• These documents are caught in the discovery net

(6)

E-Document Challenges

• Extremely voluminous and duplicative

• Easy to disperse, difficult to track

• Virtual workgroups

• Metadata, known as data about data

(7)

Rules to Address E-Discovery

• Provinces have been slow to change rules

ƒ Nova Scotia is the only province to have a rule to address e-discovery: Rule 16

• Other jurisdictions have instituted guidelines and practice directions

ƒ British Columbia’s “Supreme Court Practice Direction re: Electronic Evidence”

ƒ Alberta’s Civil Practice Note No. 14 “Guidelines for the use of Technology in any Civil Litigation Matter”

(8)

Introducing the Sedona Principles

• The “Sedona Canada Principles Addressing Electronic Discovery”

• A group of lawyers, judges and technologists met to “grapple with the phenomenon of electronic discovery”

• They “grappled” in Mont Tremblant in May 2006

• Result: first edition was finalized in January 2008

(9)

Sedona – the Authoritative Guide

• Nationwide guidance on e-discovery

• Principles are “compatible” with the discovery rules in all Canadian jurisdictions.

• Met with approval by the courts in the 2008 decisions of:

ƒ

Innovative Health Group Inc v. the Calgary Health

Region (Alberta Court of Appeal)

(10)

Document Retention Policy

Moezzam Saeed Alvi v. YM Inc. (Sales)

(2003): “a properly run company should have a documents retention policy…”

(11)

Document Destruction

• The document retention policy should also consider how long documents should be stored before destruction:

ƒ

Refer to limitation period in your jurisdiction

ƒ

Note other statutory requirements for the certain

documents

ƒ

Counsel can assist

(12)

Advantages of Document Retention

Policy

• Save time and money if there is litigation in the future

• Ability to respond confidently to e-discovery requests

• Enhances consistency through personnel turnover

(13)

Spoliation

• “Spoliation refers to the destruction or material alteration of

evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation”

Cheung v.

Toyota

(2003)

• Sedona Principle 11: sanctions for failure to preserve, collect, review, or produce e-documents. However, sanctions can be

avoided if one demonstrates failure was not intentional or reckless.

(14)

Litigation Hold

• Where litigation is threatened or pending, institute a litigation hold

• Litigation hold does not equal document retention

(15)

Preservation Response

• Collect document retention policy

• Instruct “key players” to cease destruction

• Make back-ups that store relevant documents

• Suspend practice that modifies relevant documents

• Engage third party IT experts to capture the relevant data

(16)

The “Filing Cabinet”

• A computer hard drive is like a filing cabinet (

Northwest Mettech v.

Metcon,

1996)

ƒ

This analogy is often cited in e-discovery matters

• Do not need to manually search through all e-mails at $2 a piece

• Develop search terms

ƒ

Confer with opposing counsel

(17)

Defend your search

• If agreement is not reached, be prepared to defend (or challenge) the search terms in court

• Shell Canada Limited v. Superior Plus Inc., (2007 Alta.):

ƒ Counsel did not confer to agree on search terms

• This was “regrettable”

ƒ Court found a presumption in favour of the production being complete.

ƒ Alleged defects in search terms were not put to the responding party in cross-examination on affidavit.

ƒ No expert evidence was adduced on adequacy of search terms

(18)

Proportionality

• Ontario Rules of Civil Procedure: "These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

• British Columbia Practice Direction: scope of discovery may be modified to reflect the circumstances of the particular case

• Sedona principle #2: the rule of proportionality

(19)

Case law examples of Proportionality

• Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 (Master)

ƒ a broad request that the corporate defendant search its entire computer systems for e-mail relating to matters in issue in the litigation was properly refused on the grounds that such an undertaking would, "having regard to the extent of the

defendant's business operations, be such a massive undertaking as to be oppressive“

• Innovative Health Group Inc. v. Calgary Health Region (2008) (A.B.C.A)

ƒ How much discovery is enough

(20)

What to do with the “Hits”

• Once you have:

ƒ Found the “key players” ƒ Settled on search terms

ƒ Collected documents with the search terms

• Review the documents

• Produce those that are relevant and not privileged

• Consider the proper form of production

(21)

Privilege

• You have narrowed in on the relevant documents

• Documents must be manually reviewed for privilege (

Air Canada v.

Westjet

)

• Beware of

Metcalfe v. Metcalfe

(22)

Costs

• Sedona Principle #12:

ƒ

Costs generally borne by the producing party

ƒ

Cost shifting typically occurs at the end of litigation

ƒ

Where a producing party must go through

(23)

Costs – case law example

• Barker v. Barker (2007) (ON S.C.J.)

ƒ Claims were related to treatment received at maximum security mental health centre

ƒ Voluminous documents were relevant:

• 381 three-inch volumes containing between 50,000 and 100,000 largely double-sided documents

ƒ Documents to be scanned and coded

• Cost between $160,000 - $383,000

ƒ Defendants seek order that 1/3 of costs are payable by plaintiffs

ƒ Court noted the very substantial continuing benefits to the plaintiffs and the court that are likely to be obtained from the conversion of the defendants’ productions into electronic form

(24)

Summary

• Develop a document retention policy

• Institute a litigation hold when litigation is threatened

• Meet early and often with opposing counsel

• Develop search terms

• Collect relevant documents

• Search manually for privilege

(25)

CROSS-COUNTRY

LITIGATION UPDATE

Presented to: CURIE AGM

Presented by: Alexander Pettingill, Thomas Gold Pettingill

(26)

Personal Injury

Slip and Falls

ƒ Review contracts with service providers

Maintenance

ƒ Review your inspection/maintenance policy

Sports Injuries

(27)

Personal Injury (cont’d)

Alcohol - Campus Pubs and Restaurants

ƒ Ensure all servers have SIP certification

(28)

Educational Malpractice

Failure to Educate

ƒ Professor/Student Relationship

• Checks and balances on Professor’s control over student

ƒ Failure to Provide Academic Accommodation

(29)

Educational Malpractice (cont’d)

Administrative

ƒ Student Calendars/Literature sent to students

• Audit re. course requirements, program availability, etc.

ƒ References to Licensing Bodies

• Should be peer-reviewed

ƒ Obligation to Provide Marks/Transcripts

(30)

Outside Rotations/Malpractice

Medical Students

Midwifes

ƒ Written agreements with professional organizations

ƒ Duty to report vs.

Personal Health Information Protection Act

Dental students

ƒ Campus Dental Clinics

(31)

Campus Security

Investigation, Arrest and Imprisonment

ƒ Officer must have contemporaneous, detailed notes

Jurisdiction of Campus Police

ƒ Ensure officers familiar with jurisdictional issues

Racial Profiling

(32)

Defamation

Lectures/Publications

ƒ Academic Freedom vs.

Libel and Slander Act

University web site, Web pages and Blogs

(33)

Defamation (cont’d)

Presentations

• Be alert to use of private information

Personal Health Information Protection Act

Internal Investigations

(34)

“Unique” Students

Vexatious Litigants

The “Armenian Conspiracy”

Pot smoke being pumped into Dorm room

(35)

Trends From The U.S.

Student suicides

Claims related to criminal conduct of students

ƒ Campus shootings

Breach of Licensing Agreements

(36)

Campus Security Issues

-Lessons from Small v. UWO

Presented to: CURIE AGM

Presented by: Ian Gold

Thomas Gold Pettingill

(37)

Overview of Presentation

Background of Case

Why Issues in This Case are Important

Jurisdiction of Campus Police

Racial Profiling Issues

(38)

Background of Case

Causes of action

Evening of altercation

Campus police investigation

Arrest and imprisonment

(39)

Why Issues in This Case are

Important

Supreme Court of Canada decision in

2007 re police negligence

Expands focus of Court inquiry into police

actions

ƒ

Reasonable grounds test still stands

(40)

Why Issues in This Case are

Important

To be determined…

ƒ

Move away from malicious prosecution because of

difficulties with proof

(41)

Jurisdiction of Campus Police

Limited in geographic area but generally have

same powers and duties as city/provincial police

officer

Powers and duties derived by statute and by

private contract

Risk Management Issue: place of arrest

(42)

Racial Profiling Issues

Potential areas for liability

ƒ

Failure to train / promote awareness of issue/ have

comprehensive policy

(43)

Racial Profiling Issues

Risk Management Issues

ƒ Ensure adequate procedures are in place to train campus police officers on anti-discrimination and racial profiling issues

ƒ Ensure adequate anti-discrimination policies are in place and that policies specifically address bias and profiling issues

ƒ Post Anti-Discrimination Policies and Procedures and Definition of Racial Profiling in Campus Police Office

ƒ Have racial profiling literature available and ongoing CLE for officers ƒ Ensure that procedure is in place for students who wish to pursue

(44)

Other Lessons

What to do when a complaint is

withdrawn?

ƒ

Ensure adequate follow-up with student

(45)

Other Lessons

When is there a duty to continue

investigation?

(46)

Other Lessons

Involvement of alcohol

(47)

Other Lessons

What other evidence can hurt or help?

ƒ

Officers’ log book notes

ƒ

Occurrence Report

• Ensure contemporaneous detailed notes of investigation and documentation of all investigative steps taken

• Ensure notes have objective tone

References

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