Litigation counsel and their clients have long been put on notice that electronically stored information may become the subject of requests for production. The scope of the duty to preserve, and the breadth of the type of electronically-stored information subject to the preservation obligation are not always readily apparent. In fact, when coupled with the reality that huge volumes of material maybe involved, e-discovery has the potential to increase litigation costs to staggering levels.

Electronically stored information has and will continue to change the way people do business and store business related information. For lawyers, it has changed how they should advise their clients regarding their production obligations when litigation is pending.

The Inaugural Sedona Canada Program on Getting Ahead of the e-Discovery Curve is a two day conference to be held in Toronto on October 23-24, 2008 that offers an opportunity to gain valuable insights into best practices for e-discovery, and practical strategies to meet judicial expectations, while reducing costs. The conference is the first of its kind to be held by Sedona Canada, the Canadian version of the well-known U.S. think tank, The Sedona Conference® which is responsible for The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production and other important resources.

The Sedona Conference® Canadian Working Group on Electronic Document Retention & Production which evolved into Sedona Canada is the non-profit law & policy think-tank that developed The Sedona Canada Principles Addressing Electronic Discovery. Sedona Canada was formed out of the growing recognition that the discovery of electronically stored information can no longer be seen as a peculiarity of litigation in the U.S. involving huge dollars or limited to complex commercial lawsuits. E-discovery is now a reality for business organizations of all sizes.

Sedona Canada’s purpose is to develop best practices recommendations for lawyers, courts, businesses and others who confront e-discovery issues. The upcoming conference is the first event where Sedona members will share their expertise, insights and experiences. The conference will be featuring Sedona Canada’s expert faculty including esteemed members of the Bench, leading practitioners and experts.

The panelists will include The Honourable Mr. Justice Colin L. Campbell of the Ontario Superior Court of Justice, Master Calum MacLeod of the Ontario Superior Court of Justice, and legal practitioners such as Susan Wortzman, founder of Wortzman Nickle and the Chair of the Steering Committee of Sedona Conference® Working Group 7, Sedona Canada, and Co-Chair of the Inaugural Program together with Kelly Friedman, a litigation partner with Ogilvy Renault LLP and Co-Chair of Sedona Canada Inaugural Conference, Dominic Jaar, legal counsel at Ledjit, an information management, e-discovery and law practice management consulting firm, Jonathan Redgrave a founding partner of Redgrave Daley Ragan & Wagner and Steering Committee Chair Emeritus of The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1), as well as Martin Felsky of Commonwealth Legal, David Gray, a partner in the Litigation Group of McCarthy Tétrault in Montréal, Glenn A. Smith, one of the five founding partners of Lenczner Slaght, Karen Groulx, a partner at Pallett Valo LLP, Peg Duncan, Department of Justice, Canada, Robert Deanne, a partner with Borden Ladner Gervais LLP in Vancouver, Ron Hudges of Nixon Peabody, Kenneth J. Withers, Director of Judicial Education and Content for The Sedona Conference®, as well as other members of the bench and bar from both Canada and the U.S. Panel discussions will focus on 7 key areas:


• The Sedona Canada Principles
• Management of Electronic Information to Avoid Costs in Discovery
• Cost-Shifting & Sanctions – Judicial Advice
• Legal Holds: The Trigger & the Process
• Multi-Party, Multi-Jurisdictional, Class Actions & Other Complications
• Cooperation with Opposing Counsel on Common e-discovery Issues
• New Roles and New Teams to Manage e-discovery Successfully




You can find out more about Sedona Canada’s upcoming conference in Toronto at The Sedona Conference web site at http://www.thesedonaconference.org.

According to a recent article in The Economist, the advent of e-discovery may be the single most significant change to the legal system in the last half century. This is principally due to the huge volumes of material that can be involved and the sometimes staggering cost of processing it. It has been aptly put by Ken Withers, Director of Judicial Education and Content for The Sedona Conference,

More money is probably spent litigating electronic discovery problems than in litigating class actions…this is part of potentially every case in the 21st century

Approximately 60 billion emails are created and sent every day and over 99% of all documents are created and stored electronically.[PDF] According to a Chicago law firm quoted in the Economist article referred to above, restoring email can cost roughly US$2.00 per message, including the cost of lawyers needed to review the documents. An in-house lawyer for Q-West, a telecom firm, also acknowledges that his firm spends at least twenty-five (25) percent more on legal fees relating to discoveries then is did two (2) years ago. An article which appeared in the Chicago Tribune three years ago reported that Exxon Mobile generates 121,000 back-up tapes per month, which it routinely recycles according to its records retention policies. The company claimed that if a judge ordered it to stop recycling tapes to preserve data, the additional cost to purchase extra tapes would be $1.9 million per month.

The scope of the duty to preserve, and breadth of the type of electronically-stored information subject to the preservation obligation is also not always readily apparent. By way of illustration, on May 29, 2007, the U.S. District Court for the Central District of California held in Columbia Pictures v. Justin Bunnell [TorrentSpy] that data temporarily stored in a computer's random access memory (RAM) was a relevant document that must be preserved and produced in litigation. In this regard, the U.S. justice system has adopted a simple rule when discussing the obligation of organizations to preserve:

… the more sophisticated the information technology in which a business invests, the greater its digital information preservation obligations. Additionally, the more ways in which a business seeks to share information and enable access to information, the broader its preservation obligations.

Litigation counsel and their clients are now arguably put on notice that data in RAM that can be modified up to several billion times per second should be considered a potentially relevant document that may need to be preserved as part of a litigation hold! The literal explosion in the amount of electronically stored information which is produced today and the increasing use of more complex electronic document and communication technologies (such as internal blogs, collaborative shares, internet and voice over internet protocol (VOIP)) only serve to magnify the issue.

Inextricably linked to the preservation obligations plaguing counsel and litigants are the production disputes that provide much fodder for our judges and courts. The courts in Canada have denied onerous and abusive requests for production when attempting to balance the litigator’s mindset to leave no stone unturned and to beat the proverbial opponent to death through endless production demands against today’s reality of apparently limitless ESI. Take, for example, the case where the court refused to order the production of reports which could verify from which IP address certain on-line bets were placed9 and the case where the corporate defendant was being asked to search its entire computer system for an e-mail relating to “matters at issue in the litigation”10. In both cases the court found the requests to be unduly burdensome and oppressive. Principle 2 of The Sedona Canada Principles,11 sometime referred to as the Proportionality Rule, is a reaction to the delays and costs impeding access to justice.

In a speech to the Canadian Bar Association in August 2007, Justice Beverly McLachlin declared access to justice "a basic right" for Canadians, like education or health care. The justice system risks losing the confidence of the public if access is beyond the reach of average Canadians.12 The new reality of the digital world leads to the obvious concern that individual litigants will seldom have the means or resources to tackle the e-discovery behemoth, particularly if they are taking on the proverbial corporate giant.

Unfortunately, the access to justice problem is magnified in the E-discovery world – can proportionality be achieved in a world where we have grown increasingly dependent on our blackberries, Facebook and MySpace interchanges—Is the courtroom a stage where only the rich can play?