Canadian Lawyer

18 M A Y 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m T E C H S U P P O RT dnevin@proskauer.com O P I N I O N Sedona Canada is the Canadian- focused working group of a larger, U.S.- based non-profit called The Sedona Conference. The tag line of The Sedona Conference is "moving the law forward in a reasoned and just way." Although some of its earliest and best-known work consists of principles relating to e-discovery, The Sedona Conference also publishes white papers on other topics, such as complex litigation and mass torts, intellectual property, and anti-trust law. Members can join one or more working groups, attend con- ferences and education sessions, and access white papers and other resources. Interested persons can join The Sedona Conference and then join one or more working groups, including Sedona Canada. There is no need to be an expert to join. (I am a member of The Sedona Conference and have partici- pated in Working Group 7 initiatives.) The introduction to Sedona Canada's revised document is superb, and suc- cinctly sets out how electronically stored information behaves differently than paper documents, and why this matters, even in small cases. The introduction also draws attention to the ubiquity of electronically stored information in today's world and why this matters to all parties to litigation — the facts required for proof are now, largely, electronic. Those who venture beyond the intro- duction will be rewarded by revital- ized principles and substantially revised commentary. In some cases, the original principle has been redrafted and the commentary overhauled. The Sedona Canada Principles, as the 2008 document became known, set out 12 principles and accompanying commen- tary, which became the de facto guidance document for practitioners and courts when addressing electronic discovery issues, particularly during litigation. The 2010 amendments to Ontario's Rules of Civil Procedure explicitly incorporated reference to these principles; the Sept. 5, 2014 decision Palmerston Grain v. Royal Bank of Canada confirmed that parties to litigation are required to comply with them, effectively mandating that the prin- ciples are implemented. The principles of proportionality and co-operation permeate the work of The Sedona Conference generally and are emphasized in the revised Principles 2015. Principle 2 now articulates a five- part framework to guide the evalua- tion of proportionality in the context of discovery efforts. The question of "how much" electronic discovery is required can be addressed through this five-part test; I expect the courts will use this test. Similarly, principle 4 and its com- mentary provide a compelling case for the role of co-operation by parties in establishing the contours of discovery. One unresolved question is how the principles of co-operation and pro- portionality will interact, particularly under rule regimes that mandate a dis- covery plan. A corollary to the principle of proportionality is the recognition that, in some cases, full discovery will not be proportionate and it remains to be seen the extent to which the prin- ciple will be used to abrogate discovery rights. When combined with the prin- ciple of co-operation, it may be that parties can agree to limit discovery and it is unclear whether and how courts will revisit such decisions if embodied in written discovery plans negotiated by the parties. I am not aware of case law on this point. The commentary to the Principles 2015 is generally rich in information, examples and case citations, but there remain areas of vagueness. For example, principle 6 refers to a "reasonable infor- mation governance structure," but what Updated Sedona Canada Principles on point 2015 revision offers revitalized principles and substantially revised commentary relating to e-discovery. By Dera J. Nevin he Sedona Conference Working Group 7, also known as Sedona Cana- da, has released for public comment a revision to its seminal 2008 docu- ment, the Sedona Canada Principles Addressing Electronic Discovery. The 2015 revisions (Principles 2015) is a necessary refresh to address, in particular, the pervasiveness of social media and the increasing volume of digital information that continues to be created. In my January 2014 column I noted that Sedona Canada had been too quiet for too long, and with this revision has answered questions about whether they can produce anything of relevance. Clearly they can, and have. T PRINCIPLE 2 NOW ARTICULATES A FIVE-PART FRAMEWORK TO GUIDE THE EVALUATION OF PROPORTIONALITY IN THE CONTEXT OF DISCOVERY EFFORTS. You can download Sedona Canada's 2015 update at https://thesedonaconference.org/ download-pub/3990

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