Electronic documents are everywhere these days, and that naturally means that they are in courtrooms. Getting them there has been a process of accommodation, law reform and arguably some wilful blindness as to the vulnerabilities of such documents.
An early effort at law reform was the Uniform Electronic Evidence Act adopted by the Uniform Law Conference of Canada in 1998 and enacted in several provinces and territories (e.g. Ontario) and at the federal level (Canada Evidence Act ss 31.1 – 31.8). The UEEA focused on the best evidence rule, which tends to require that parties produce an original of any document they wish to use, or an explanation of why the original is not available. The notion of original is largely meaningless in respect of electronic documents, and in any event any purported original is no better than any copy.
The UEEA changed the focus to the integrity of the record-keeping system from which an electronic document came. A recent debate about the Uniform Act is described here.
A later phase at opening up the law was electronic filing, where the e-documents were pleadings and factums. Ontario adopted rules on that topic in the 1990s and a broader one in 2001, though it was later repealed because the technology it was drafted to express was not implemented. Many courts across the country now allow or even require electronic filing
Still later, attention turned to the discovery of e-documents, which raised questions of volume of records, their dispersion, their format and the cost of producing them. Many Canadian jurisdiction followed the principles and sometimes the language of the Sedona Canada Principles addressing Electronic Discovery developed in the United States and adapted to Canadian practice.
This note does not address the desirability or even legality of incorporating private standards into rules with legal effect. This issue has affected how the Sedona Principles have been dealt with in Canada, with different jurisdictions taking different approaches. A general discussion of some of the questions this raises is here.
With the limited exception of the UEEA, none of these initiatives addressed the question of general application: how does one introduce e-documents into a court or administrative proceeding as evidence? How do the parties and ultimately the tribunal decide what documents are relevant? How do they manage the type of questions that arise on discovery, mentioned above, in the proceeding itself?
A number of provinces have made rules or enacted legislation on this topic. While many had common elements, notably some reference to the Sedona Principles, they were not completely consistent, and some jurisdictions had nothing.
To promote harmonization on this topic, in the interests of multi-jurisdictional litigation or just litigants who must operate in many jurisdictions, the Uniform Law Conference established a working group on electronic document rules in 2016. The Working Group includes many of the best-known experts on technology and law in Canada. The 2018 Report lists them in Appendix B.
A draft uniform set of rules of civil procedure to answer these questions was produced for the 2017 meeting. After consultations with a number of professional groups, this year’s meeting received a revised draft set of rules (Appendix A of the 2018 Report).
The 2018 Report lists the existing rules across the country, highlighting briefly their common elements and their inconsistencies. It also sets out in a bit more detail the arguments in favour of harmonization, both for court proceedings and before administrative tribunals. (Criminal proceedings are not covered by the draft Uniform Rule.)
The Uniform Rules would apply to any civil or administrative proceeding that involved any electronically stored information (ESI), even if some of the information to be produced is in paper form. (Rule 2.1) It applies to both the discovery stage and the trial or adjudication stage, and in this respect is a step beyond e-discovery rules now in place in a number of places.
A court may order that a proceeding or any step in it may be conducted with the aid of technology. (Rule 4.1) This means that a court can order parties to produce documents in electronic format, including native format (i.e. the form in which the document was created by its originator – a word-processed document, a live spreadsheet, and so on.) The draft Uniform Rules do not expressly address whether a party can compel a court to operate with electronic documents. Applying for an order under Rule 4.1 would in practice be a means of putting that issue before the court.
As is often the case with existing rules on electronic discovery, the parties to the proceedings are bound to make a Discovery Plan to disclose and produce their electronic documents. Such a plan can include what the party will do to find its own documents and to recover some from third parties, how they will sort through large amounts of information to find relevant items, what classes of document the parties do not propose to produce because it would be disproportionately difficult or costly to produce them, how they will deal with matters subject to privilege, and the like. (Rule 6.1, 6.2)
While parties are to make their best efforts to agree on a Discovery Plan within 60 days of close of pleadings, the failure to agree will not hold up proceedings. Any party may serve on other parties its list (or affidavit) of documents, setting out the elements of the plan. (Rule 6.3) Other parties are required to respond to such a service within 60 days with their own Plans. (Rule 6.5)
All parties have a duty to take reasonable steps to preserve relevant documents in their “possession, control or power”, once it is reasonable to anticipate legal proceedings. This is arguably an obligation today. They should also get in touch with non-parties with relevant evidence to help ensure the preservation of documents in hands of those non-parties.
The Uniform Rules go on to specify that preservation of electronic documents includes their preservation in their native format with their metadata intact. The relationship of documents to each other is a key part of the information they convey.
Any party may apply to a court to compel other parties to comply with these rules. (Rule 6.6)
Parties have a continuing obligation to disclose further material documents (electronic or otherwise) as they come to their attention. (Rule 7.1)
All the elements of the Uniform Rules are subject to the overriding principle of proportionality. As this principle is at the heart of the Sedona Principles and already incorporated into a number of provincial procedures, it is probably familiar to the reader. The short of it is that all obligations are to be tailored to the circumstances of the case – the value at stake, the technical and legal complexity, the relevance of the electronically-stored information – and of the parties – the resources available to them, any imbalance in economic power, and the like.
The proportionality principle arises from the recognition that ESI can be huge and diverse and widespread and of different degrees of relevance to the dispute in question. As a result, in almost no case will it be possible or desirable to find and produce *all* the evidence possible. To keep proceedings fair and manageable, recourse to this principle is required throughout the Rules.
Members of the Working Group have expressed the belief that the use of technology in civil proceedings need not be expensive, and that Discovery Plans can be as simple as a letter setting out the headings and contents of a plan.
The Uniform Rules presume a principle that parties generally bear the costs of their own production of documents. However, it also allows a court to shift the burden of costs, including making an interim order that one party should forthwith pay all or part of the other party’s costs relating to production.
Rule 8.3 lists factors for the court to consider in shifting costs for these purposes. Some relate to the retrieval itself: how hard is it, how well directed is the request to the needs of the proceeding, what other sources of the information may exist, and so on. Some relate to proportionality questions: cost of production compared to the resources of each party; other burdens placed on the producing party, such as disruption, employee time and other opportunity costs; the relative ability of each party to control costs, and more.
A comment to Rule 6 sets out possible contents of a ‘discovery protocol’ with practical considerations thought to be too detailed or case-specific to include in the Rule itself. These matters include the format for production od documents, the format for listing privileged or non-privileged documents, any privilege ‘claw-back’ agreement (by which parties could get back any documents disclosed that later turn out to be privileged), the fields of metadata to be provided, and other such details.
The ULCC adopted the Uniform Rules in principle in August 2018. The Working Group now plans to ask the various provincial and territorial bodies with authority over the rules of court and of administrative practice to consider amending their rules accordingly.
It is recognized that each jurisdiction has its own perspective on its rules, and to some extent its own language. Practices may vary, for example as to standard time periods for filing motions or responding to them. The Uniform Rules will need adaptation to local customs, while maintaining the uniform principles that make them an improvement on what is in place now.
Although the Uniform Draft Rules were circulated to many professional bodies between 2017 and 2018, they may still be influenced by appropriate commentary addressed to the Working Group or possibly to one’s jurisdictional rule-making body. The desirability of uniform adoption to the extent possible should be kept in mind.
To the extent that harmonization of such matters across the country seems worthwhile, it would be helpful to have that view expressed to the rule-making bodies in support of the Uniform Electronic Document Rules.