E-Discovery Records Must Be in “useful” Format

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.

The court cites a couple of Ontario cases (Quiznos, Gamble) and a B.C. case (Adroit Resources) to the same end. Perell J in Quiznos said

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]


  1. It is understandable that it may appear in the legal world that the native file format may yield more info than a flat .TIF for these common scenarios:

    *macros, etc. for auto-calculations. Would there be a question how the macro was designed?
    *layered CAD drawing that display different infrastructure and other markings, depending on the user’s view choices, etc.

    This is where having a document management system that has an automated strict audit trail of user activity (who viewed, downloaded, edited, etc. the document with dates) and versioning would assist in verifying the native file integrity ….to even make it even worthwhile for evidence in discovery. Otherwise, more discovery costs and effort to technologically determine that history of the file itself and its integrity.

    Problem may be more complicated for dynamically driven online information displays and data visualization via online dashboards with metrics, and geospatial online maps with multiple information layers, that are pulling real-time information from multiple sources for 1 user screen display….depending on user search string, time of day, date and their user access rights. Can one always assume all the multiple sources of real-time information for 1 screen display, is correct / updated?

    The above last example, is not just a TIF limitation, it’s how in certain information technology tools, 1 electronic document/record existed/was used in relation to other records displayed at the same time, in a business context on a particular day /time.

    Am not answering the question, how to advise a client what formats to keep…because this question falls internally to the dept. that makes the decision what to keep/formats.

  2. Given that they’re accounting records, I assume that the primary reason for wanting them in native format is not to examine metadata or to verify integrity but to allow the party getting them to further manipulate them. Search, sort, subtotal, the sorts of things you can do in excel but not with TIF or a picture format. Even something as trivial as adding up a column of numbers is trivial in excel but a tedious manual exercise in a picture format.

  3. Sorry to sound incredibly naïve: is this what e-discovery includes? The ability for the opposing party to manipulate a copy of the native file. (vs. looking at file/ data as is and all associated “hidden” information, ie. macros/formulae, etc.)

    Folks in the records management world may need some basic awareness here..