Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50881
domain names, the e-mail addresses of people's family mem- bers and exclude that data. So, you have an executive's e-mail, his wife, his daughter, best friends, they're not business- related. The whole idea of the review is going to be to capture business interactions. D'SILVA: It is still amazing in this day and age, the number of people who think that because they have deleted e-mail or they think because they have sent it from PIN to PIN. . . and they think everything is fine because they have deleted all the really bad e-mails, and of course forensic experts come in and do their magic and you see the whole field. CAMPBELL: This is still a problem for the court system because one of the difficulties is, we're still operating in a paper world where people turn the electronic information into paper, append it as exhibits to affidavits. It gets filed in the court. No staff person, or judge for that matter, is going to think of privacy unless it is raised by somebody else, and if it is raised, the cat is out of the bag, so to speak. It's a problem. THE IMPORTANCE OF DOCUMENT- RETENTION POLICIES D'SILVA: I think having a consistent document-retention policy is the key. You pick 10 employees and they all will have different approaches to e-mail. One will delete them every day, and the number of cases we have been involved with where peo- ple have such a strongly held view that, everyone knows you can destroy them after six months. Where did you get that from? They are convinced that they heard it somewhere, and someone else will be keeping it for seven years, but if you have a consistent policy, it will avoid any suggestion, in the middle litigation, there was an intentional spoliation of documents or evidence. CAMPBELL: Consistent policy is the thing judges will look for. Up to this point, we have been seeing situations in which we get an affidavit from a big organization that says it is going to take us two years and cost a million dollars to respond to what the plaintiff wants, with no particularity to it, with noth- ing that provides us with anything of what the policy is. They just simply say, assuming that some judicial officer is going to agree, it is not proportional to do this. But from my point of view, you are going to need more. . . . FRIEDMAN: I query, with this discussion, about the employees who act off-policy. What will we do as lawyers and what will the courts do? There is always going to be a situation where you can find something, especially in the electronic world, and that's where proportionality comes into play. Our policy says that it is deleted. You have no right to it. It ought to be gone. If that witness slipped up and didn't follow the policy, you shouldn't be able to benefit from that. I just query that. It is an interesting debate I can see happening. SCHWEIZER: That argument might have more traction if you can show you have taken steps to audit the policy and measure compliance. It's not just a piece of paper that nobody has read. Document retention is becoming more important because of the links between that policy and the cost contain- ment issues on e-discovery. DEALING WITH CROSS-BORDER ISSUES D'SILVA: [In] our experience, class actions, a proceeding in Canada often involves offices in Ontario and New York at the same time. I think there are two issues. One is the rules for rel- evancy and privilege are not the same in other U.S. jurisdictions. The other issue is what happened in the IMAX case, where you have certification proceedings going on in Canada and moving ahead towards certification or leave in the class action, and the action in the States has been stayed because there is a motion to dismiss. The action is not going anywhere and the U.S. lawyers, in conjunction with the Canadian lawyers, are trying to get access to the Canadian documents and cross-examinations and discovery transcripts to get at the whole issue. Are these documents subject to the implied undertaking rule? How do you enforce implied or deemed undertaking rule on U.S. lawyers, or is it an appropriate case for the court to make an order sealing the file? CAMPBELL: In the insolvency field, we're now well used to having co-operation between courts and, in fact, there is a cross-border protocol entered into with the bankruptcy court in the U.S. and the Canadian courts across the country that even allows for court-to-court connection. But there is another inter- esting feature of that, part of the Canadian insolvency regime, that's a court monitor or sometimes trustee, and that allows for the U.S. court to get an understanding. . . . I think, if not done in an adversarial way, if you can reach an American judge, or we, as Canadian judges, can understand the differences in the regime and find a co-operative route to achieve the proportionality that INHOUSE JUNE 2010 • 31