Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50894
BUSINESS CASE Guiding principles for e-discovery The recently released Sedona Canada Principles offer in-house counsel a detailed road map to e-discovery issues. By Heather Capannelli W hen is a document not just a document? Well, as most litigators know, when it's (among other things) a sound recording, video- tape, database, or other piece of informa- tion that finds itself in electronic form. How to treat this electronic informa- tion in the context of litigation has been the catalyst for much debate and delib- eration. Consider this: a large corpora- tion can generate and receive millions of e-mails and electronic files each day. Electronic documents are easily dupli- cated and can be sent — inadvertently or voluntarily — to any number of recipi- ents and are more difficult to dispose of than paper documents, in that, even once they're deleted, information can remain on a storage device until it's overwritten by new data. More and more, it's these "documents" that are being requested and produced at the discovery stage of litigation, where in the past only paper documents had been exchanged. They're at the core of e-discovery: a phenomenon that is quickly changing the way litigation is conducted in Can- ada, the basis of which is quite simply that electronically stored information is discoverable. This means that every em- ployee e-mail, every web site and instant message, every Word document, Excel spreadsheet, and company database can be drawn into the discovery process. And for in-house counsel, e-discovery presents a unique set of challenges that starts light years before a claim is even is- sued or a litigation hold-letter received. It starts with the onerous and seemingly unfulfilling prospect of creating a docu- ment retention policy — and developing the infrastructure to make sure people follow it. But where to begin? Released earlier this year, the Sedona Canada Principles Addressing Electronic Discovery provides a clearly worded, un- adulterated guide to understanding the fundamentals of e-discovery in Canada. Its 12 principles take into account issues C ANADIAN Lawyer INHOUSE JUNE 2008 25