Increased emphasis on cooperation and discovery planning, a modified proportionality test and the increasing role of Information Governance in e-discovery were key themes covered by members of the Sedona Canada Steering Committee in last week’s webinar.  The panel highlighted the major changes to the first revision of the Sedona Canada Principles since the first edition was published in 2008.  The Draft Second Edition has been released for public comment  and can be found on the Sedona Conference website at:https://thesedonaconference.org/publication/The%20Sedona%20Canada%20Principles.

Many of the Principles themselves have been amended to address the evolution of the law and practice across Canada.  In addition, the Commentary to the Principles is now much more heavily focused on Canada in light of the increasing number of Canadian cases in this area.  Cases from across the country are included in the Commentaries.

Some of the key highlights:

  • The concept of discovery planning has developed across Canada, even where provincial rules of court do not mandate it. There has been a cultural shift among the Canadian bench and bar towards cooperation in discovery planning – judges expect counsel to cooperate and plan.  More counsel are routinely doing so.
  • Proportionality principles have been adopted not just in the e-discovery context but throughout the litigation process.
  • Technological advances such as increased ease in accessing data, decreased storage costs and the development of lower cost tools have been reflected in the edits to Principles 5, 6 and 7.
  • New sources of ESI raise significant privacy issues.  The balance between the discovery of relevant ESI and privacy concerns is now addressed in the Commentary to Principle 9.  Issues such as social media and BYOD are specifically covered.
  • Principle 11 has been modified to reflect the concept that sanctions are not just for punishment of the offending party but can be a remedy for the affected party.  Even where a party inadvertently destroys relevant records, courts may therefore grant a remedy to assist the party who is impacted by the loss of the records.

The Sedona Canada Principles are a go to resource for counsel and the courts in e-discovery issues, emphasizing themes of cooperation, planning, and proportionality throughout litigation matters.