Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O C T O B E R 2 0 1 5 39 ttawa's Competition Bureau recently published guide- lines for the production of electronic documents, becoming one of the few regulatory bodies in Canada to do so. The instructions emerged from an ongoing working group of bureau officials and members of the Canadian Bar Association's competi- tion law section. The guidelines apply to all information submitted to the bureau, versus information seized under a search warrant, says Melissa Fisher, an assistant deputy commissioner. "For the most part, we've already been receiving information in the desired format." Under the Competition Act, the bureau has the authority to compel parties to a merger to produce certain information. "We also collect a lot of information vol- untarily," adds Fisher. "The guidelines are more used when we are commencing an investigation and starting to collect infor- mation as opposed to once we're in litiga- tion, though they could be used there, too." Sophisticated companies often retain a vendor to handle collection and produc- tion. The guidelines are intended to alert the party to collect the information in a way that will facilitate later production. "The guidelines are also structured in a way that allows us to do our review of the documents faster using the tools that we have. We're trying to go into a very large production of information and figure out whether there's a potential breach of the act or not. We want the information produced in a way that will enable us to do that. We're not trying to go through every single document," says Fisher. The guidelines are meant to promote consultation between the bureau and par- ties that may have to provide the informa- tion to the competition watchdogs. "One little error can cause a huge delay, and result in our having to reload documents, which costs time and money," says Fisher. Most parties will produce a sample of the information before they actually do their full production. "We'll make sure we can load the sample. If there are any issues with the sample, we'll be on the phone with the company and their technical representa- tives to make sure we get those ironed out." Mark Opashinov, a partner and com- petition lawyer at MacMillan LLP, says the bureau's guidelines are "very consis- tent with market practice" and necessitate little adjustment by his firm. "They get rid of marginal differences [in production]. There's always some divergence, in my experience, between what the authorities request and what is possible and reasonable to produce." The bureau's aim, he believes, is to achieve "a high degree of consistency from multiple producing parties. It would be madness, from their perspective, to get highly divergent productions. There are always multiple choices in collecting your data and organizing it for production. To L E G A L R E P O RT \ E - D I S C O V E RY ALEXI VELLA E-docs and admin tribunals Few Canadian regulatory bodies or tribunals have guidelines or rules around the production of electronic documents. By Sheldon Gordon O

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