The New Nightmare – Discovery of
Electronic Information in
Civil Litigation
Presented to: CURIE
Presented by: Thomas Donnelly,
Thomas Gold Pettingill
Surprise!
• An unexpected letter
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;
Ignorance is not Bliss
• You roll your eyes and ignore the letter
• But beware of
Zubulake
Employee discrimination case
jury instructed to assume that some unpreserved and
unrecoverable e-mails would have harmed the
defendant’s case
What are E-Documents?
• Documents that are electronically stored and read with an electronic device
• These documents are caught in the discovery net
E-Document Challenges
• Extremely voluminous and duplicative
• Easy to disperse, difficult to track
• Virtual workgroups
• Metadata, known as data about data
Rules to Address E-Discovery
• Provinces have been slow to change rules
Nova Scotia is the only province to have a rule to address e-discovery: Rule 16
• Other jurisdictions have instituted guidelines and practice directions
British Columbia’s “Supreme Court Practice Direction re: Electronic Evidence”
Alberta’s Civil Practice Note No. 14 “Guidelines for the use of Technology in any Civil Litigation Matter”
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
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:
Innovative Health Group Inc v. the Calgary Health
Region (Alberta Court of Appeal)
Document Retention Policy
•
Moezzam Saeed Alvi v. YM Inc. (Sales)
(2003): “a properly run company should have a documents retention policy…”Document Destruction
• The document retention policy should also consider how long documents should be stored before destruction:
Refer to limitation period in your jurisdiction
Note other statutory requirements for the certain
documents
Counsel can assist
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
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.
Litigation Hold
• Where litigation is threatened or pending, institute a litigation hold
• Litigation hold does not equal document retention
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
The “Filing Cabinet”
• A computer hard drive is like a filing cabinet (
Northwest Mettech v.
Metcon,
1996)
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
Confer with opposing counsel
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.):
Counsel did not confer to agree on search terms
• This was “regrettable”
Court found a presumption in favour of the production being complete.
Alleged defects in search terms were not put to the responding party in cross-examination on affidavit.
No expert evidence was adduced on adequacy of search terms
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
Case law examples of Proportionality
• Dulong v. Consumers Packaging Inc., [2000] O.J. No. 161 (Master)
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)
How much discovery is enough
What to do with the “Hits”
• Once you have:
Found the “key players” Settled on search terms
Collected documents with the search terms
• Review the documents
• Produce those that are relevant and not privileged
• Consider the proper form of production
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
Costs
• Sedona Principle #12:
Costs generally borne by the producing party
Cost shifting typically occurs at the end of litigation
Where a producing party must go through
Costs – case law example
• Barker v. Barker (2007) (ON S.C.J.)
Claims were related to treatment received at maximum security mental health centre
Voluminous documents were relevant:
• 381 three-inch volumes containing between 50,000 and 100,000 largely double-sided documents
Documents to be scanned and coded
• Cost between $160,000 - $383,000
Defendants seek order that 1/3 of costs are payable by plaintiffs
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
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
CROSS-COUNTRY
LITIGATION UPDATE
Presented to: CURIE AGM
Presented by: Alexander Pettingill, Thomas Gold Pettingill
Personal Injury
•
Slip and Falls
Review contracts with service providers
•
Maintenance
Review your inspection/maintenance policy
•
Sports Injuries
Personal Injury (cont’d)
•
Alcohol - Campus Pubs and Restaurants
Ensure all servers have SIP certification
Educational Malpractice
•
Failure to Educate
Professor/Student Relationship
• Checks and balances on Professor’s control over student
Failure to Provide Academic Accommodation
Educational Malpractice (cont’d)
•
Administrative
Student Calendars/Literature sent to students
• Audit re. course requirements, program availability, etc.
References to Licensing Bodies
• Should be peer-reviewed
Obligation to Provide Marks/Transcripts
Outside Rotations/Malpractice
•
Medical Students
•
Midwifes
Written agreements with professional organizations
Duty to report vs.
Personal Health Information Protection Act
•
Dental students
Campus Dental Clinics
Campus Security
•
Investigation, Arrest and Imprisonment
Officer must have contemporaneous, detailed notes
•
Jurisdiction of Campus Police
Ensure officers familiar with jurisdictional issues
•
Racial Profiling
Defamation
•
Lectures/Publications
Academic Freedom vs.
Libel and Slander Act
•
University web site, Web pages and Blogs
Defamation (cont’d)
•
Presentations
• Be alert to use of private information
•
Personal Health Information Protection Act
•
Internal Investigations
“Unique” Students
•
Vexatious Litigants
•
The “Armenian Conspiracy”
•
Pot smoke being pumped into Dorm room
Trends From The U.S.
•
Student suicides
•
Claims related to criminal conduct of students
Campus shootings
•
Breach of Licensing Agreements
Campus Security Issues
-Lessons from Small v. UWO
Presented to: CURIE AGM
Presented by: Ian Gold
Thomas Gold Pettingill
Overview of Presentation
•
Background of Case
•
Why Issues in This Case are Important
•
Jurisdiction of Campus Police
•
Racial Profiling Issues
Background of Case
•
Causes of action
•
Evening of altercation
•
Campus police investigation
•
Arrest and imprisonment
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
Reasonable grounds test still stands
Why Issues in This Case are
Important
•
To be determined…
Move away from malicious prosecution because of
difficulties with proof
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
Racial Profiling Issues
•
Potential areas for liability
Failure to train / promote awareness of issue/ have
comprehensive policy
Racial Profiling Issues
•
Risk Management Issues
Ensure adequate procedures are in place to train campus police officers on anti-discrimination and racial profiling issues
Ensure adequate anti-discrimination policies are in place and that policies specifically address bias and profiling issues
Post Anti-Discrimination Policies and Procedures and Definition of Racial Profiling in Campus Police Office
Have racial profiling literature available and ongoing CLE for officers Ensure that procedure is in place for students who wish to pursue
Other Lessons
•
What to do when a complaint is
withdrawn?
Ensure adequate follow-up with student
Other Lessons
•
When is there a duty to continue
investigation?
Other Lessons
•
Involvement of alcohol
Other Lessons
•
What other evidence can hurt or help?
Officers’ log book notes
Occurrence Report
• Ensure contemporaneous detailed notes of investigation and documentation of all investigative steps taken
• Ensure notes have objective tone