While facilitating the easy transmission and storage of information, electronic communications also raise significant challenges in a litigation context, specifically for the discovery of electronic documents.

Among those challenges is the sheer mass of materials that these communications potentially represent. When electronic documents, most notably e-mails, become the subject of discovery, litigants and their counsel may be faced with a morass of data and materials to be sorted for relevance and privilege.

The recent Ontario Superior Court decision in Air Canada v. Westjet Airlines Ltd. illustrates the scope of this challenge. In that case, Air Canada sought an order confirming that, by disclosing 75,000 electronic documents to Westjet, it did not waive privilege over any confidential materials inadvertently included in the disclosure, arguing that a complete review would be laborious, time-consuming and expensive.

The judge denied the order sought by Air Canada and observed that the Guidelines for the Discovery of Electronic Documents in Ontario (Ontario Guidelines) expressly contemplate a detailed review for relevance and privilege after completion of the electronic search and before disclosure to the opposing party.

The fact that such a review might be “costly and laborious,” as alleged by Air Canada, did not justify either dispensing with its necessity or shifting the onus of review away from the disclosing party.

Recent case law in the United States has shown that the methods of electronic searching and review may themselves be subject to disclosure, to enable opposing counsel or a court to verify the adequacy of the review.

In the U.S. decision of Peskoff v. Faber, the plaintiff sought further disclosure of e-mails not contained on the disks after disclosure by the defendant of certain electronic documents via computer disks. The defendant maintained that it had completed thorough electronic searches for relevant documents and made complete disclosure. The court ordered the defendant to provide a detailed affidavit accounting for its electronic search process.

The court order is consistent with an emerging practice in the United States requiring litigants to disclose keywords and other details of their electronic search-and-review methods during the discovery process.

McCarthy Tétrault Notes:

Planning data management and review methods carefully, and ensuring that specific searches are thoroughly documented when they are carried out, should now form part of every company’s best practices when dealing with electronic materials relevant to litigation.

You should also be aware that the metadata underlying electronic documents, and not just the content of documents themselves, may be the subject of disclosure. For example, under the Ontario Guidelines, it is no longer acceptable for a company to simply burn relevant e-mails onto a CD or print hard copies to deliver to counsel to review.

Rather, “As soon as litigation is contemplated or threatened, parties should immediately take reasonable and good faith steps to preserve electronic documents.” Your lawyer may be required to “create litigation copies of potentially relevant active data sources, for example by means of electronic back-up or forensic copying of the documents, so as to preserve potentially relevant metadata.” Indeed, clients may be at risk of court sanctions, including spoliation findings, for failing to adhere to the Ontario Guidelines.

Comparable guidelines and practice directions have either been introduced or are being designed for all Canadian jurisdictions.

Whenever a company needs to search and retrieve electronic documents (because of actual or impending litigation), it is important to ensure that it has the expertise and research tools, or access to service providers with the expertise, tools and knowledge of the company’s data storage practice to appropriately preserve and identify the relevant documents and metadata.