Law Times

Page 10 December 1, 2014 • Law Times www.lawtimesnews.com A look at e-discovery in the criminal context By arshy mann Law Times espite its growing prominence in civil lit- igation, issues around electronic data have had less profile when it comes to criminal law. "One of the things about the criminal law is that there isn't a body of e-discovery case law that has been developed," said Kelly Friedman, a partner at Davis LLP, at the annual Ontar- io Bar Association E-discovery Institute this fall. However, governments and the courts have started to take an interest in looking at how to disclose evidence to defence counsel electronically. A 2008 report on mega trials by retired justice Patrick LeS- age and Justice Michael Code of the Ontario Superior Court described a lack of consistency in disclosure practices by police forces and Crown offices. The report suggested stan- dardizing disclosure practices with a move towards electronic options. "Although electronic disclo- sure is not a necessary solution to the problem of inconsistent dis- closure practices, it is a very prac- tical tool," according to the report. "Electronic disclosure is a much faster, simpler, and less ex- pensive means of ensuring that initial disclosure is comprehen- sive in these large complex cases." However, according to Ma- rie Henein of criminal defence firm Henein Hutchison LLP, au- thorities have yet to implement the report's findings with elec- tronic disclosure still only used in extremely rare instances such as the Nortel Networks Corp. prosecution. "And when it is provided in electronic format, there's no standardized way of producing it or organizing it," she said. In 2013, the Department of Justice put out a discussion paper looking for consultation on whether the federal govern- ment should amend legislation in order to standardize elec- tronic disclosure practices. "The proposed legislative re- sponse could create a presump- tion in favour of electronic disclo- sure as an adequate form of dis- closure," according to the paper. "Such a presumption would not set out an obligation to provide electronic disclosure, but would make it clear that the option is generally available to the Crown." Since 2010, the Supreme Court of Canada has become more ac- tive in dealing with the issue of searching and seizing electronic devices and the data they contain. In a number of cases, the Su- preme Court has asserted that individuals have a privacy interest in their personal and corporate computers, Internet protocol ad- dresses, and various forms of elec- tronic communications. Another case that's currently on reserve at the Supreme Court, R. v. Fearon, will clarify whether individuals also have a privacy in- terest in their cellphones. Henein said that while these cases mainly deal with the criminal context, she expects respondents in regulatory inves- tigations will also begin to raise these arguments. Friedman said the Supreme Court rulings on electronic evi- dence, especially when it comes to privacy-related issues, are likely to have an impact on civil litigators as well. "The case law has developed that if you're going to try to pro- duce or demand disclosure or production of documents that have personal information in them, usually what the judge will do is tell you to figure out how to redact it." Friedman added she believes the Supreme Court of Canada rulings would likely make judg- es tougher in terms of requiring redactions. LT someone else's record, whereas in the old days you'd have to go and actually physically pull out some- one's paper," said Nickle. Aaron Franks, a family lawyer at Epstein Cole LLP, said that despite the importance of e-discovery, many family practi- tioners have been ignoring it. "E-discovery should be all about family law and family law should be all about e-discovery and in the family law bar, nobody does it," he said. Franks said he has yet to receive a litigation hold letter in a single case, although he has sent out a few. "I've probably sent out a doz- en in the past two years," he said. "Usually, the response is, 'What the hell is this?' And I've never had a meet and confer." Franks said the kind of infor- mation often considered irrel- evant in commercial litigation is essential to a family law case. "If the lawyer for Air Canada asks the CEO of WestJet if he's ever slept with someone other than his wife, he gets a punch in the mouth. If it's a matrimonial file, then they're told to answer the question because it's relevant," he said. That means personal e-mails, text messages, and other docu- ments are what family lawyers often focus on the most. "The purpose of culling e- discovery is that only relevant e-mails or only relevant docu- ments are pulled together and disclosed," said Franks. "You want to rule out the e-mails that suggest that some- body may have been at a hotel last Saturday. That's exactly what I want in my area of work." And there's a vast amount of documents that could be rele- vant in most cases, especially be- cause family law deals primarily with everyday life. "If you think about the volume of e-mail that goes back and forth between spouses, there's very lit- tle that isn't possibly relevant in a family law file," said Franks. According to Franks, there's a danger if family lawyers don't keep e-discovery considerations at top of mind. "It should either be part of your standard retainer letter that you do or it should be part of the standard letter that you send when litigation becomes likely to specifi- cally tell your client that at some point they're likely to be asked to produce documents, which in- clude e-mails," he said. LT FOCUS Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. So you spend less time searching and more time finding. • Never miss a case using the unmatched collection of reported and unreported Criminal and related cases exclusive to CriminalSource™ – including the Canadian Criminal Cases (the CCCs) • Get relevant Criminal Law expert insight and analysis in minutes to help you interpret the law – and build a legal strategy in less time and with more confidence • Link directly from any section of the Criminal Code to detailed commentary and annotations from Canada's leading criminal law experts – including Martin's Annotated Criminal Code, Martin's Annotated Related Criminal Statutes, Tremeear's Annotated Criminal Code and Tremeear's Annotated Related Criminal Statutes With so much at stake, every case deserves the best research. See for yourself. Watch a demo at westlawnextcanada.com/criminalsource Call 1-866-609-5811 00223AX-A46861 Continued from page 9 D Family lawyers ignoring e-discovery

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