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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.

"The rule amendments are meant to encourage parties to talk up front so that you can manage electronic evidence," said Sutton.

Theoretically, before the parties even start to look for electronic evidence, counsel is encouraged to sit down and answer questions such as what they are looking for, what they need, in what format, and what database platform will be used, he said.

Many new amendments that have come into effect in Ontario and British Columbia look to U.S. authorities and think they can generally apply here, but "they really can't, because it is so completely different," said Maddex.

"I think there is a general perception in Ontario that Ontario has become similar to the U.S., but it hasn't," he said.

Still, e-discovery is a developing area of law, most of the guidance available comes from the States, and Canadian lawyers and judges thinking about the topic are looking at U.S. precedents, he said.

"U.S. authorities aren't relevant except that people here who are in positions of authority believe they are ... so in a way, you do have to understand U.S. precedents to be knowledgeable, because it is on the table, but it is being misused," he said.

What the U.S. federal rules changed wasn't necessarily what people were responsible for demonstrating, but that IT had to get involved as part of the discovery process, said George Goodall, senior research analyst at Info-Tech Research Group Ltd.

You can "squirm around various element of legality," but the legal issue for IT is relatively similar in Canada the U.S., said Goodall. "At the end of the day, if there is evidence that needs to be produced and you have access to it and you don't produce it, that is contempt," he said.

While Canadian IT departments don't have as much experience with e-discovery, they do have good tools to choose from because of what has happened in the U.S., said Dave Pearson, senior research analyst at IDC Canada.

"Canada isn't as tight in terms of compliance and e-discovery as the U.S. is, but it is certainly something that is slowly building in Canada," he said.

E-discovery lawsuits have been heating up in the U.S., the U.K. and Australia, said Patrick Eitenbichler, director of worldwide product marketing, information management, software at Hewlett-Packard Co.

But "any company that does business with an organization in the U.S. will fall under the same e-discovery regulations, and since there is a lot of trade between Canada and the U.S., e-discovery is important for Canadian companies as well," he said.

The key is to set a policy and then follow it, said Eitenbichler.


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