Canadian Lawyer InHouse

august 2014 16 INHOUSE Q U I Z ANSWERS A DAILY BLOG OF CANADIAN LEGAL NEWS WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS FEEDS LEGAL POWERED BY 1 (D) It is recommended that counsel meet and confer at the outset of litigation to set the parameters of electronic discovery, including the scope of document production. The courts in some provinces (such as British Columbia and Alberta) have issued practice directions recommending this. If the agreed scope includes the retrieval of deleted data, your company should instruct a qualifi ed person to proceed. Any deleted documents that have not been overwritten and can be retrieved would be produced during discovery. Regardless of what counsel has agreed upon, if the court later determines that the information is required, the court can order that any retrievable information be recovered and produced. If there is no agreement or order to retrieve deleted data, a party is not obligated to retrieve such information. 2 (A) In the ordinary course of litigation, your company is required to pay for the costs of producing documents, electronic or otherwise. The opposing party must pay the costs of taking a copy of those documents. At the end of the litigation, the court may make an award for the costs of production against the losing party. It is only in unusual circumstances that one party might obtain an order before trial directing that the opposing party pay all costs of the documentary production process upfront. 3 (D) While it is unlikely that the plaintiff will provide an admission, it is still an option for proving authenticity, particularly if there is other evidence produced to support the authenticity, or evidence to contradict the plaintiff's account. Others who have knowledge of the document in question can also be called upon to give evidence of its authenticity. (However, practically speaking, it may be diffi cult to fi nd witnesses who can clearly recall an e-mail received in 2009.) Expert witnesses can also be relied upon to investigate and provide testimony with regard to an electronic document's authenticity. 4 (C) Databases are recognized as being a unique type of fi le, more like a fi ling cabinet than a single document. In most cases (including this example), where the database contains irrelevant and/or privileged information, providing a printout of the relevant information in a readable format is all that is required. When a court is asked to order access to the database itself, it will weigh concerns about privileged, irrelevant, private, and commercially sensitive information, against the likely benefi ts and value of the access to the other party. If the entire database is relevant, however, it should be produced. For more complex databases, production in its native format (electronic, rather than printout), with the software required to read it, may be necessary. YOUR RANKING? ■ One correct: might be time to brush up ■ Two correct: not bad, but some further work needed ■ Three correct: very well done, but not perfect ■ Four correct: excellent

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