Helpful Model E-Discovery Precedents Released

The Ontario E-Discovery Implementation Committee (EIC) has just released eight model e-discovery precedents, as well as additional e-discovery best practices documents.

The EIC is a joint committee established by the Ontario Bar Association and The Advocates’ Society. It is composed of litigators from both the private and public sectors, and members of the judiciary in Ontario. The mandate of the EIC is to implement best practices with respect to electronic discovery within the Ontario court system and litigation bar. One of the keys tasks of the EIC is to inform and educate lawyers and the judiciary regarding the “how” of e-discovery – creating practical tools that help practitioners and the courts deal with e-discovery issues. A key theme in the work of the EIC is proportionality – the requirement to ensure that the e-discovery requirements that are placed on litigants are proportional, in terms of cost, time and effort, to the nature and dollar value of the case.

The eight EIC model precedents include:
• an e-discovery checklist, with annotations on how to minimize e-discovery costs
• a discovery agreement
• a preservation agreement
• two sample memoranda to be sent to a client (corporate or individual) regarding documentary discovery
• two preservation letters
• a preservation order

Additional best practices documents include 10 Guiding Principles to Minimize E-Discovery Costs and a case-specific example of a lawyer’s letter confirming a discovery agreement.
The documents are available to anyone and can be downloaded from the Ontario Bar Association’s e-discovery page.

These documents include detailed annotations to The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”). The Sedona Canada Principles are a set of national guidelines for e-discovery in Canada, which reflect both existing legal principles and a set of identified best practices. They are intended to be compatible with the discovery rules in all Canadian jurisdictions.

The LEXUM Canadian E-discovery Portal page has other useful information on e-discovery, includig Peg Duncan’s Canadian E-Discovery Case Law Digest for Common law and Civil law. Peg Duncan also prepared a great Canadian focused e-discovery reading list that is available on practicePRO’s site.

The EIC invites comments on its materials. The Committee will review all comments received and consider appropriate revisions to the documents. Comments may be submitted to David Outerbridge, Chair of the EIC, at douterbridge@torys.com.