The Alberta Court of Queen’s Bench has recently held that a party who held relevant electronic records must produce them in native format, rather than in TIFF format, although producing them in native format (in this case, Excel) could take six months’ work and cost $50,000. Alberta and Canadian law were admitted to require that such production be proportional to the stakes in the dispute and not unduly burdensome, but ordering the production in this case was held to satisfy those tests.
Bard v Canadian Natural Resources, 2016 ABQB 267 (CanLII)
This despite a litigation plan that contemplated production in TIFF format, in which the records had been produced – but a company expert admitted that they were not very usable in TIFF.
discovery plans are just that, they are a plan and there is an old maxim that it is a bad plan that admits of no modification.
The novelty here may be the cost of compliance to provide the native format.
Does this result come as a surprise to anyone? There seem to be a lot of dicta that native format files are the best ones to produce, and in many cases the only ones that will be acceptable. Would you advise your clients any differently?
Would you advise your clients to keep their records any differently, given that they will be producible? Or will the need for accurate business records ensure the integrity of the records when and if they end up the subject of litigation?
[hat tip to Barry Sookman for the original link]