The Sedona Conference has just published the Second Edition of The Sedona Canada Principles Addressing Electronic Discovery. The original edition, first published in 2008, was quickly adopted by lawyers and the courts as the “best practice” guide for managing e-discovery in Canada.
The 2nd Edition was just released on November 20th. It has long awaited updates, particularly given the advances in technology since 2008. Four key enhancements are:
- Principle 2 now has a five-part test for proportionality. The test is clearly enunciated, along with a thorough commentary and supporting Canadian cases.
- Principle 3’s commentary has been amended to emphasize the value and importance of information governance as a way of preparing for litigation and, in particular, for e-discovery. This acknowledges that information governance is not a fad – it is foundational.
- Principle 4 has been amended to emphasize the concept of “cooperation” as opposed to “meet-and-confer” in developing a joint discovery plan. Emphasis is on the good-faith sharing of information aimed at reaching agreement on a discovery plan. This better reflects a holistic approach to cooperation.
- Principle 7 provides that a party may use electronic tools and processes to satisfy its documentary discovery obligations (this seems quaint in 2015). The commentary contains a gold mine of guidance. The discussion on general techniques and tools that can be used by a party to satisfy its disclosure obligations has been expanded. Most importantly, there is a section on the importance of sampling and validating any method adopted to fulfill a party’s discovery obligation. If we are to see a full transition to technology assisted review and machine learning, sampling and validation need to be at the table.