Canadian Lawyer InHouse

15 canadianLawyErmag.com/inhousE august 2014 Q U I Z Marie-Andreé Vermette, Partner and Mandy Seidenberg, Associate, WeirFoulds LLP GO TO CANADIANLAWYERMAG.COM TO WATCH A WEIRFOULDS LLP LAWYER TALK ABOUT THIS QUIZ. 1 Your mid-sized company has identifi ed and must produce electronic documents relating to ongoing litigation brought against the company by a former client. In the regular course of work over the years, relevant documents were deleted. Should the deleted information be retrieved for the purposes of production during documentary discovery? (A) Yes, if the parties involved agree that it should be. (B) No, you are never obligated to retrieve deleted data. (C) Yes, if the court orders that it must be done. (D) Yes, in the case of both (A) and (C). 2 Your company's email server distributes tens of thousands of email exchanges daily. Your inbox alone accumulates about a hundred emails per day (though it feels like tens of thousands). As part of the discovery process, you must retrieve all e-mails relating to the former client, dating back to 2009, as they are relevant to the dispute. Your personal archives go back three years, with the rest residing on backup tapes in an off-site storage facility. Who picks up the tab for retrieving these documents, given the amount of time and effort required to extract the information? (A) Your company pays for retrieving and producing the documents, but the former client pays the cost of taking a copy. (B) Your company pays for the retrieval and any copies. (C) The former client pays for the retrieval and any copies. (D) The costs of retrieval and copies are shared equally between the parties. 3 One of the emails that you retrieved from 2009 has come into dispute. Your former client insists that the version submitted into evidence has been tampered with. In that version, it looks like the dates, recipients, and the material content of the email message might have been altered. The former client is pointing to this as an example of disreputable behaviour by your company, but you are sure that, appearances aside, the information in the email is accurate. How can you prove the authenticity of the email? (A) On the examination for discovery, get the plaintiff to agree that the email is authentic. (B) Call upon an expert witness to verify the information in question and attest to its authenticity. (C) Give evidence yourself and/or call upon any other employees of your company who were copied on the email to provide evidence of its authenticity. (D) All of the above. 4 Your company maintains a database with information about the work it has done for all of its clients. Within that database, there is information about the work done for the former client. The former client has asked for an electronic copy of the entire database in its native format. Since the database also contains information about work done for other clients, which is not relevant to the dispute, you don't want to provide it to the former client. In fact, most of the information relates to other clients. Do you have to provide an electronic copy of the entire database? (A) Yes, the electronic database is a relevant document, and that entire document must be produced. (B) No, you don't have to provide an electronic copy, but you do have to provide a complete printout of the information in the database. (C) No, you only have to provide a printout of the information that relates to the former client in a format that makes it readable. The many questions in e-discovery E-discovery opens a virtual Pandora's Box of digital information that can be searched, processed and reviewed, but that can also be deleted or altered if we are not judicious in our approach. Technology can make information readily accessible to the experts, in many cases even if that information has been deleted or removed from a user's operating system. Just what is discoverable and to what lengths should you go to retrieve that information? These questions will test your knowledge.

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