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the Sedona Canada Principles, they go considerably further than either Principle 8 or its commentary, which only empha- sizes the benefits of the parties' agree- ment about production formats following a meet-and-confer process. In contrast, National Day Laborer contains some pre- scriptive language that could have three effects on Canadian law and practice. First, the various provincial rules com- mittees (or even drafters of evidence acts) could consider whether to shift the pre- sumption of production format so that ESI should be produced natively, rather than making this contingent on the parties' decisions. It is arguable that this presump- tion should be in effect, as the native file will likely be the format that satisfies the best evidence rule. Second, law could evolve such that metadata is understood to be an inte- gral part of the record and produced, barring only an inability to extract this information or concerns of privilege and/or privacy/confidentiality. If this occurs, parties will likely have to spend more time discussing metadata produc- tion. Additionally, since the fields listed by Scheindlin are broader in scope than those in the protocols and practice dir- ections of most Canadian jurisdictions that have them, there is a strong argu- ment that all jurisdictions should review their practice directions and protocols for metadata and load file exchange, and consider updating them. Finally, in light of Scheindlin's remarks, it is unquestionable that anything that downgrades the character of the record may not meet best practices for produc- tion requirements. This includes con- verting searchable text to unsearchable formats, not producing load files in asso- ciation with static images and native files, or altering the character and properties of electronic files. Until Canadian courts or lawmakers address these issues, the National Day The decision is available at The Sedona Canada Principles can be found at www.CANADIAN Lawyermag.com M AY 2011 19 ntitled-1 1 2/15/11 12:44:19 PM Laborer decision underscores the import- ance of the meet-and-confer conference, and the need to decide early on what the production formats will be. The ultimate production format may affect the collec- tion efforts of the parties and the review phase. For example, if native files are to be produced, greater care must be taken to review metadata and hidden properties of files. Ultimately, counsel must be aware that decisions about production formats are decisions about the character, proper- ties, and robustness of the evidence that will be available to counsel and the court in the proceedings. Dera J. Nevin is the senior director, liti- gation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm's e-dis- covery operations and can be reached at dnevin@mccarthy.ca. National v. Da Immigr L y Enfyurl.c v or c tin e-disc o Unit ement ed Stat A abor ation er es ency Org and om/6enb48q. g anizinust g oms C Netw ork www.le ery/inde x.html. xum.org/