Law Times

PAGE 18 CANADIAN LAW & TECHNOLOGY FORUM OctOber 6/13, 2008 • Law times do for arbitration what the Sedona Principles hope to achieve in Canada. The idea is to create rules and guide- lines to remove e-discovery as a threat and come to an agreement before the start of arbitration so not to bog down the process. "What the CPR is trying to do, through both our ar- bitration committee and our e-discovery committee, is to put some rationale back into the process," Aldrich says. "By putting some rules in place, some guidelines in place that can enable the parties and the arbitrators to access in advance what is important and what is not, and see if we can eliminate the gamesmanship from the process and get back to using arbitration for its historical advantage. "Where again it is quicker, again it is cheaper, and we balance the needs of the parties for that information with the tremendous burden in terms of time, in terms of cost, to try and achieve a better result." In 1996, Supreme Court of Canada Justice Rosalie Continued from page 17 Arbitration not immune to pitfalls of e-discovery Sedona Canada Principles in both languages innovation in Canadian courtrooms and justice systems and cited by justice reform working groups as part of a need for innovation in Canada's legal processes. Managing those changes have been something that Abella's contem- poraries are now charged with, and Nickle allows that many of those on the bench have taken their role in stride. "There are certainly some judges that are leading the charge to get other members of the judiciary and counsel to be more cognizant of e-discovery issues," Nickle says. "There are some real leaders in the judiciary in that regard." Wortzman allows that, "some of the judges are amazingly techno-savvy and the courtrooms are amazingly techno-savvy and in other cases there is a real learning curve for counsel and the bench for how to manage electronic evidence." As a result, continuing legal education programs on e-discovery are popping up across Canada, Nickle says. Abella made the observation that, "with all these profound changes in how we travel, live, govern, and think, none of which would have been possible without fundamental experimentation and reform, we still conduct trial almost exactly the same way we did in 1906. Any good litigator from 1906 could, with a few hours of coaching, feel per- fectly at home in today's courtrooms. Could a doctor from 1906 feel the same way in an operating room?" 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Principle 2: In any proceeding, the parties should en- sure that steps taken in the discovery process are propor- tionate, taking into account: (i) The nature and scope of the litigation, including the importance and complexity of the issues, in- terest, and amounts at stake; I n 2006, a group of lawyers, judges, and technol- ogy experts met to discuss e-discovery as part of the Sedona Conference working group on e-discovery. (ii) The relevance of the available electronically stored information; (iii) Its importance to the court's adjudication in a given case; and (iv) The costs, burden, and delay that may be im- posed on the parties to deal with electronically stored information. Principle 3: As soon as litigation is reasonably antici- pated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information. Principle 4: Counsel and parties should meet and confer as soon as practicable, and on an ongoing ba- sis, regarding the identification, preservation, collec- tion, review, and production of electronically stored information. Principle 5: The parties should be prepared to pro- duce relevant electronically stored information that is reasonably accessible in terms of cost and burden. Principle 6: A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information. Principle 7: A party may satisfy its obligation to preserve, collect, review, and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching, or by using selection criteria to collect potentially rel- evant electronically stored information. Principle 8: Parties should agree as early as possible in the litigation process on the format in which elec- tronically stored information will be produced. Parties should also agree on the format, content, and organi- zation of information to be exchanged in any required list of documents as part of the discovery process. Principle 9: During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade se- crets, and other confidential information relating to the production of electronic documents and data. Principle 10: During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums. Principle 11: Sanctions should be considered by the court where a party will be materially prejudiced by another party's failure to meet any obligation to pre- serve, collect, review, or produce electronically stored information. The party in default may avoid sanc- tions if it demonstrates the failure was not intentional or reckless. Principle 12: The reasonable costs of preserving, col- lecting and reviewing electronically stored informa- tion will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order. — Kelly Harris

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