Electronic document discovery in commercial litigation

One of the key components of conducting civil litigation in British Columbia is the production and discovery of documents by each of the parties to  the lawsuit. The parties are required, both at common law and under British Columbia’s Supreme Court Civil Rules, to produce relevant documents in their possession or control which bear on the issues in the lawsuit. Lawyers in British Columbia are ethically obligated, as officers of the Court, to ensure that all relevant documents are produced by their clients – even if those documents are harmful to their client’s case. Production and discovery of documents is typically the first substantive step in civil litigation, and it is not unusual for commercial cases in particular to turn almost entirely on the documentary evidence.

“Documents” in this context, however, are more than just physical pieces of paper. The Supreme Court Civil Rules and the caselaw that has developed interpreting those rules have created a very expansive definition of ‘documents’. Significantly, electronically stored information of all kinds is subject to discovery and production in a lawsuit, so long as it is relevant to the issues. This can include e-mails, PDF files, spreadsheets, draft electronic versions of documents, databases, audio and video recordings, electronic calendars, text messages, social media content, photographs, diagrams – the list goes on. With the proliferation of home and office computers, network servers of all sizes, mobile phones, tablets, laptops, digital media players, social media and cloud computing platforms, memory cards, digital cameras, and flash storage drives, it can be challenging to identify all potential sources of relevant electronically-stored information. In addition, where in the past paper documents were subject to being lost or destroyed, it is now highly unlikely that electronically-created or stored documents will not exist somewhere on someone’s hard drive, in their e-mail inbox, or on a backup server. It is therefore critical that all potential sources of electronic evidence be identified, searched and reviewed early in the litigation process.

It is also important to bear in mind that electronically-stored information also includes unseen ‘metadata’ that, in some instances, may end up becoming more important to the case that the original content. Metadata can provide important information about an electronic document, such as how, when and by whom it was created, accessed or modified. Depending on the circumstances of the case and the nature of the electronically-stored information (and its relationship to the issues), the metadata associated with the documents may itself be subject to production. Often this can be accomplished by producing the document in its ‘native’ electronic format; however, care must be taken to ensure that the original metadata is preserved.

Since commercial cases in particular often revolve around the documentary evidence, it is critical to ensure that electronic documents and other evidence are properly located, preserved, reviewed, and produced. It is important to ensure that steps are taken at the very outset of a lawsuit to ensure that electronic documents are identified, preserved and properly harvested for production purposes. A clear e-discovery plan implemented at the outset of litigation can save significant time and expense later on, and it is important to ensure that information technology professionals are available to assist in the process of collecting and preserving electronic information.

Finally, corporations and other institutional bodies are well-advised to ensure that they have an established document retention protocol that allows ‘litigation holds’ to be implemented in order to ensure that electronic evidence is not inadvertently altered, lost or destroyed. Litigants should bear in mind the following comments from the Ontario Superior Court in a 2003 case, in which the Court criticized the defendant company for failing to preserve documents relating to the plaintiff’s employment: “[A] properly run company should have a documents retention policy requiring retention of files for a reasonable period extending beyond the limitation action for civil causes of action in contract or tort.”

While the scope of electronic discovery can seem daunting (and can in fact be daunting on particularly document-intensive or complex files), the process can be efficiently and effectively managed by taking early, pro-active steps to ensure electronically-stored information is properly identified, collected and produced.