Review of Electronic Evidence in Canada

Electronic Evidence in Canada 
by Graham Underwood and Jonathan Penner
published by Carswell 2010-1-30
price: $120.00
ISBN: 978-0-7798-2263-8

“A helpful reference for those dealing with issues arising from the production and use of ESI in litigation process.”

In the preface to the book, Penner and Underwood point out that guidance about the admissibility of electronic evidence is currently lacking in Canada and set out to remedy this situation with an commendable textbook on the nature of electronically stored information (ESI), its management both before litigation and once litigation commences, and its admissibility as real, documentary and demonstrative evidence.

 Government lawyers and corporate counsel will appreciate the sections on the management of ESI from a lawyer’s perspective. There are excellent sources on information and records management in the marketplace, but these tend to be written by people in the information management and technology area: this book covers the fundamentals from a lawyer’s perspective and training. I did appreciate the inclusion of the different types of metadata (system, substantive and embedded) since these terms are often inconsistently explained and frequently muddled.

 The treatment of the disclosure of electronic information should also interest investigative agencies designing systems that capture and store information gathered during investigations, since they must anticipate not only the needs of their staff but also those of the Crown and the defence.

 Although the discovery and production of ESI have been covered in other texts as well as in The Sedona Canada Principles Addressing Electronic Discovery, the last part on admissibility presents the issues and challenges for what may be the first time. It’s aimed at lawyers and judges and delivers the order and analytic rigour promised in the preface. I would have welcomed more illustrations using different types of ESI in different situations to help explain the concepts.

 It’s not often that a book review will enthuse about the Table of Contents and the overall organization of the text, but I found them very good for helping to locate information on specific topics. This is what you want and expect in reference text, but too often don’t get. There’s a well-organized index at the back organized more by legal concepts than by occurrence of the word, and a Table of Cases in the front.

 Jonathan Penner and Graham Underwood are counsel at the British Columbia Ministry of Attorney General and both well-seasoned litigators.

  • Buy Recommendation:
  • Who should buy? Courts, litigators, inside counsel at large corporations and government agencies, prosecution and defence counsel, counsel advising police forces and agencies with police powers
  • Better Buys: None
  • Websites: None
  • New Media Rating: -
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Comments

  1. Thanks for the great review Peg. I’m intrigued. You mention “prosecution and defence counsel” but not civil trial counsel. Is it just that we’re not as likely to be put to proof? Something else? Dan.

  2. Ooops. Correcting my own comment Peg. I read your “why should buy?” paragraph four times and couldn’t see the word “litigators.” Claiming a vacation-induced mental block. Thanks again!