Law Times

Law Times • July 7, 2014 Page 17 www.lawtimesnews.com Sedona Canada looking to update e-discovery principles By Glenn Kauth Law Times edona Canada is looking to update its principles for electronic discovery this summer. "The need for the update comes because the Sedona Canada principles were first promulgated in 2008," says for- mer Superior Court justice Co- lin Campbell, a member of the advisory board of the Sedona Conference and co-chairman of Sedona Canada. Campbell notes the Sedona Canada principles predate the 2010 changes to the Rules of Civil Procedure in Ontario that emphasized proportionality in electronic discovery as well as discovery plans and the case law that has followed. The goal is to finalize any changes this sum- mer with a meeting planned for August. The changes would go out for public comment by mid- September. Campbell doesn't expect changes to the principles them- selves but says they'll likely be around the commentary at- tached to them. "It's going to be in the commentary to ref lect the cases more than anything else," says Campbell, a member of Neeson Arbitration Chambers who chaired the discovery task force about a decade ago. Martin Felsky, national elec- tronic discovery counsel at Bor- den Ladner Gervais LLP, agrees with the need to update the prin- ciples. Noting Ontario as well as a few other provinces have updated their rules to reference electronic discovery, he says it's impor- tant for the principles to ref lect both those changes and what the courts have been saying on the issue. Noting that a quick search turned up 40 cases referring to Sedona Canada, he says: "The Se- dona principles need to be current with what the judges are saying when it comes to the case law." In particular, he says the prin- ciples need to ref lect changes in technology since 2008. "It certainly means that the com- mentary to the principles seems pretty dated," he says. "In terms of technology years, 2008 is a long time ago," he adds, noting the references to BlackBerrys and personal digi- tal assistants as well as informa- tion stored on f loppy disks and backup tapes. "It just seems dated because we don't talk about f loppy disks anymore," he says, noting par- ties and lawyers are now dealing with things like predictive cod- ing to assist with the search pro- cess and restoring data that they could probably use some guid- ance on. In addition, the com- mentary should probably ref lect the current technologies people are using to manage data, he suggests. "Since 2008, the cloud has become huge," he says. Of course, one of the big is- sues in electronic discovery that Campbell says no jurisdiction has really found an ideal solution to is the question of balancing relevance and proportionality when it comes to what the parties have to produce. "It's right across the common law world," he says of the dilemma presented by the "explosion of potentially relevant and producible information." Of course, Principle 2 of the Sedona Canada principles has something to say about that: "In any proceeding, the parties should ensure that steps taken in the discovery process are pro- portionate, taking into account (i) the nature and scope of the liti- gation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored informa- tion; (iii) its importance to the court's adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with elec- tronically stored information." The commentary to the prin- ciple goes on to state: "Litigants should take a practical and effi- cient approach to electronic dis- covery, and should ensure that the burden of discovery remains proportionate to the issues, interests and money at stake. Without a measured approach, overwhelming electronic dis- covery costs may prevent the fair resolution of litigation disputes. Parties should generally plan for the e-discovery process from the outset with a view to analyzing the potential costs of e-discovery, the means of controlling such costs and what process might best achieve proportionality." But whether that gives parties and lawyers enough guidance when it comes to the specifics of a dispute is another question. For his part, Campbell emphasizes the need for counsel to "com- municate and co-operate" when it comes to devising a discovery plan expected by the court. It's not feasible to have people uni- laterally deciding what they want and will produce, he says. But Felsky, who says lawyers in general have yet to embrace the idea of a discovery plan, em- phasizes the idea of materiality in electronic discovery. "What is relevant is quite broad," he says, suggesting it may be better to focus instead on "producing documents that can make a dif- ference in the proceeding." "The key documents are re- ally the ones that are material," he notes. Besides the looming update to the Sedona Canada principles, other factors that may affect electronic discovery include the Supreme Court of Canada's rul- ing in Hryniak v. Mauldin. On June 26, Superior Court Justice Frederick Myers referred to the principles espoused in Hryniak in dismissing a case on summary judgment despite the plaintiff 's bid to reject the defendant's mo- tion on the basis that it needed further discovery in order to ob- tain more evidence. According to the plaintiff, the evidence was "uniquely within the knowledge of the defendants." Myers, however, cited the culture shift inspired by Hryn- iak that militated against what he called the "trial model" re- sponse to summary judgment motions. "Overall, bearing in mind the 'culture shift' it can no longer suffice to put parties to the cost and imposition of litigation based on the default position of the trial model being fairer and therefore the preferred outcome," he wrote in ThyssenKrupp Eleva- tor (Canada) Ltd. v. Amos. "Counsel only needs to be in- volved in one large production case and face the need for com- puter programmers to design code to access e-mail archives to understand why the costs of the production exercise hit the hun- dreds of thousands of dollars," he added. LT BRIEF: E-DISCOVERY Now, for the first time, there is a comprehensive new resource designed to help you navigate through every aspect of a guardianship proceeding. 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