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Don't lose sleep over U.S. e-discovery nightmares

Jennifer Kavur | March 2, 2011
What, exactly, is the difference between e-discovery laws in Canada and the U.S.? Two lawyers highlight the basics for those of us who don't work in the legal department.

Thomas Sutton, a litigation partner at McCarthy Tétrault LLP in Toronto, takes a different spin. "I always see the fact that the onus is on the parties themselves ... makes it harder," he said.

"In Ontario, parties have an obligation to disclose all documents that are relevant to issues in the action without being asked by the other side. My understanding (of the U.S. federal rules) is that the opposing parties often make a document request and then you produce in response to those requests," he said.

E-discovery laws in Canada and the U.S. "are fundamentally the same," said Sutton. "The same principles apply, but they have to take into account the slight variances in our procedure."

"I'm an advocate of, wherever possible, speak to counsel early and find out what they want rather than guess what they want; whereas if you just base it on what is relevant to the action, you could be searching and searching for things and producing things that you think are relevant that the other side doesn't even care about," he said.

The Sedona Canada Principles Addressing Electronic Discovery, developed by the Sedona Canada Working Group, are a good starting point for IT managers seeking a basic understanding of e-discovery laws, said Sutton.

The principles were developed in Canada in part to build upon the lessons learned in the United States, he said. "It was clear there was a growing need for comparable principals here in Canada," he said.

"They needed to be adjusted to take into account the unique aspects of Canadian litigation and more specifically, the unique aspects of Quebec litigation," he said.

The Sedona Canada Principles aren't laws per se, "but that can happen," said Sutton. What the courts often do is make reference to these principles when making decisions in relation to the preservation, production or use of electronic evidence in the hearings, he said.

Once the court makes reference to it, they give it "judicial blessing," he said. "It becomes law in the sense that a judge has relied upon them and decided them as authoritative and therefore to be considered and referred to," he said.

Recent amendments made to the Rules of Civil procedure in Ontario in January 2010 did incorporate one of the principles, said Sutton. "That's a first in Canada and that's an important development," he said.

So in a sense, the principles are something that Ontario, counsel and the court must take into consideration when faced with electronic evidence issues, he said. "They have narrowed the scope of disclosure and introduced this idea of a discovery plan, which is the Sedona Principle of meet and confer," he said.


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