Journal
Nova Scotia Supreme Court Posts New Civil Procedure Rules
The judges of the Supreme Court of Nova Scotia have tentatively approved new Civil Procedure Rules. Part 5, relating to Disclosure and Discovery, have been completely reworked to deal with electronic discovery and the exchange of documents in electronic form.
Martin Felsky
Final JTAC Practice Direction Posted
For those who have been patiently awaiting access, the final PDF versions are available here at ediscoverycanada.com on the Downloads page.
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Sedona Canada Principles Published
The Sedona Canada Principles Addressing Electronic Discovery are now finalized and have been published. You can find them on The Sedona Conference web site at http://www.thesedonaconference.org and on the E-Discovery Canada web site, hosted by LexUM, at http://www.lexum.umontreal.ca/e-discovery.
Osborne releases Summary of Findings and Recommendations
Coulter Osborne has submitted a Summary of Findings and Recommendations arising from his review of the civil justice system, which he was asked to undertake in June of 2006. The Final Report of the Review is expected to be delivered shortly.
From the transmittal letter: "As set out in the Terms of Reference, I have reviewed potential areas of reform and made recommendations to make the civil justice system more accessible and affordable. I believe the bulk of the recommendations are suitable for implementation within a reasonable time and, if implemented, will enhance access to justice for Ontarians."
The Report strongly supports technology initiatives as between counsel, by judges, and in court administration (section 16).
To access the complete Summary, or provide feedback, see http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/
Will your company be penalized for effective records management?
Do businesses that manage their records effectively have to produce more information than their poorly organized opponents because it is less costly?
Canadian Judicial Council approves Model National Practice Direction
At a meeting of the Council, the National Model Practice Direction drafted by the Judges Technology Advisory Committee ("JTAC") after extensive consultation, was unanimously approved.
ALSP Launches, Pledges to Develop Global Standards for the Litigation Support Profession
The Association of Litigation Support Professionals, or ALSP, officially incorporated earlier this month with a mission to establish global standards for the litigation support profession through collaboration, education and certification.
Alberta Court of Queen's Bench Releases Practice Note on Use of Technology in Litigation
The Court of Queen's Bench has developed Practice Note 14 to provide guidance to the legal profession and the public regarding the preparation, management and presentation of electronic evidence. This Practice Note was developed after extensive consultation with members of the profession representing law firms of all sizes, sole practitioners, and litigation support professionals.
Sedona Canada Draft Principles now available in French
The French translation of The Sedona Canada Principles - "Sedona Canada: La Production des Documents Electroniques (Mai 2007 Version Publique Pour Commentaries)" - is now posted on the Sedona Conference web site:
http://www.thesedonaconference.org/dltForm?did=5_07SedonaCanadaFrancois.pdf
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JTAC to consider Practice Directions May 4, 2007
The Judges Technology Advisory Committee of the Canadian Judicial Council will be meeting on May 4, 2007, to discuss, among other agenda items, the draft Practice Directions completed last February.
The Sedona Principles - Canadian Edition Released for Public Comment
Today The Sedona Principles - Addressing Electronic Document Production (Canadian Edition, February 2007) has been released for public comment.
JTAC Releases Third Drafts of Practice Directions for Alberta, Ontario and Nova Scotia
The third and final round of consultations is now complete.
Felsky to address Bar Association in Alberta
Recognizing the importance of the link between corporate and outside litigation counsel, the Corporate Counsel and Litigation Sections of the Canadian Bar Association (Alberta) have invited Martin Felsky to speak on the topic of electronic discovery. The talk will take place February 16th at noon, in Calgary at 1725, 311 - 6 Ave SW. For more information contact Tony Wozny, 403-698-8868, twozny@commonwealthlegal.com
Judicial Council releases revised Blueprint for Security of Judical Information
The Second Edition (2006) of the Blueprint for the Security of Judicial Information has now been published by the Canadian Judicial Council.
Ontario Court of Appeal Adopts Neutral Citation
The Ontario Court of Appeal has decided to adopt and implement the 1999 neutral citation for the new year starting with its very first decision of 2007.
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Why Should Lawyers Care About the Draft Practice Direction?
A perceptive large firm litigation law clerk writes today: "I was wondering if you could give me some insight into "why lawyers should care" about the draft Ontario Practice Direction. As you know, there will be a meeting in Ottawa on January 10 and I'm hoping to encourage some lawyers to attend from our office; but am not sure how best to present the importance of the issue." It's a good question, in part because it highlights the general lack of interest in "technical" matters of document production.
National Protocol Consultation Schedule of Meetings
The Canadian Judicial Council has now established a schedule for the second round of in-person consultations on draft Practice Directions for Alberta, Ontario and Nova Scotia.
Forensics revisited
Lawyers and organizations alike must bear in mind the substantial difference between forensics and e-discovery. Forensics tools usually allow investigators to (a) mirror image hard drives; (b) index and search through native format data; and (3) restore deleted or otherwise difficult to access files and fragments. Forensics tools are needed where fraudulent conduct is suspected and a user's computer behaviour is at issue. They are not to be used as substitutes for electronic discovery processing tools, which are designed to extract files and data from multiple sources and make them accessible for searching, sorting and reviewing.
Today a client who used a proprietary forensics tool to capture a hard drive (why?) needs to review and produce the documents in litigation. Since they no longer have access to the original hard drive (or to an accessible mirror image), all they have is a digital dog's breakfast.
Lawyers Like Paper - and that's OK for them
Paper and electronic information will co-exist for a long time, but sometimes the purveyors of paper know when they are beat.
The Client Isn't Always Right
I am really looking forward to the first case of Canadian lawyer e-discovery malpractice. I think I found a couple of candidates - true stories. I will deny every word if subpoenaed.
Clarifying Client Roles in E-Mail Capture
In the context of document discovery, many outside counsel advise their clients to search for relevant e-mails, and then print them out or burn them to a CD for review. That practice is no longer sustainable as a matter of law or practice.* By ignoring the obligation to preserve not only the content of e-mail messages but the metadata associated with them, you may be putting your clients at risk of spoliation sanctions.
The "Order" of Attachments in the Review Process
Reviewers should be aware that e-mail attachments listed in an e-mail message may not appear in the review database in the same order in which they are listed.
Sedona Conference Announces Working Group 7 - Sedona Canada
The well-known U.S. think tank responsible for THE SEDONA PRINCIPLES: Best Practices Recommendations & Principles for Addressing Electronic Document Production and other important resources, has created Working Group 7 - Sedona Canada.
What Lawyers Need from Their Clients
Some clients who use a knowledge management system (KMS) assume that their outside counsel can use this system to prepare for litigation without incurring any costs for “e-discovery” processing.
The Integrity of E-Mail Dates
In global businesses and even in many "local" businesses, e-mail arrives and is delivered to and from a variety of time zones. When processing e-mail messages from desktops, or from the notebooks of travelling executives, keeping track of the correct date and time may be important for evidentiary purposes.