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E-Discovery & Canada

I came across an interesting question recently: How does e-discovery in Canada differ from e-discovery in the United States? Given the close cultural and historical bonds between the two countries, I expected litigation and e-discovery to be closer than it really is. Here is our overview of the situation: The Canadian provinces exert tremendous control over e-discovery practices and procedures in common and civil law. There is no corresponding natural statute such as the U.S. Federal Rules of Civil Procedure, making e-discovery in Canada difficult to affect on a unified national principle.

There are national Canadian guidelines with the publication of Sedona Canada's e-discovery principles and the Judicial Council's practice direction for e-discovery in civil courts. ("The Sedona Canada Principles Addressing Electronic Discovery" and "National Model Practice Direction for the Use of Technology in Civil Litigation," respectively.) These principles and guidelines for court practice are excellent steps forward and provide guidance for provinces that are developing their own sets of e-discovery rules. (British Columbia, Nova Scotia, Alberta, and Ontario have well-developed principles or drafts, and other provinces are no doubt busy as well.) Neither is statutory, and they exist as guidelines to implementation.

For example, the Sedona Canada Principles stress "proportionality" as a foundational principle. The idea is that the expenditure of resources in order to discover electronically stored information (ESI) must be proportional to the merits and scope of the case. This statement makes a great deal of common sense, and you would think the courts are already doing that -- but no. Counsel is often guilty of using e-discovery costs to browbeat opponents. And clients like to think that their legal teams are leaving no e-discovery stone unturned -- at least on the other guys' side. But this huge expenditure of resources leads to e-discovery costs that are hugely out of line with the actual merits and importance of a given case.

The "Model Practice Direction" from the Judicial Council supports and expands the Sedona Canada "Principles" from a judicial standpoint. For example, the judges strongly suggest that the attorneys use meet-and-confer sessions to intelligently discuss relevant ESI discovery issues, including limiting search and burdensome costs. It should go without saying (but doesn't) that attorneys should have a clue about the costs associated with search and preservation.

Frankly, attorneys involved in U.S. e-discovery could learn a lot from the Sedona Canada "Principles" and the "Model Practice Direction." This is no accident -- Canadian courts badly want to avoid the insane costs associated with U.S.-based e-discovery.

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