As of the beginning of this year, the scope of the procedural rules in Ontario for documentary disclosure in pending litigation has changed. Instead of having to produce all documents “relating to any matter in issue,” a party must produce all documents “relevant to any matter in issue.”

In many companies and firms with archived data that may be subject-matter for litigation, readying documents for disclosure as part of the discovery process will require evaluation and paring down. Even when dealing with hard copy, such a task has many challenges, and this will surely become more so when considering Electronically Stored Information (“ESI”). It’s thought that over 90% of corporate communications today is done in various electronic formats. Given that pervasiveness, such things as duplicative e-mail threads, mere e-mail covers for attachments, FYIs, multiple iterations of the same document and automatic storage in mainframe servers, as well as the hard drives of each e-mail recipient, will make for a time-consuming, labour-intensive exercise.

Despite the effort involved, both big and smaller companies should be mindful of the “Sedona Canada Principles Addressing Electronic Discovery,” which advocates a proportionate view of the task by taking into account “(i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.”  

These efforts and the attention required to preserve, review and analyze relevant, compellable data must be balanced against the need to approach ESI in a reasonable, cost-efficient and pragmatic manner so as not to overwhelm either party with the production of volumes of unnecessary information that may very well be lacking entirely in evidentiary or probative value.