View from the Bench on Emerging Judicial Considerations

An impressive judicial panel involving the Honorable Mr. Justice Colin L. Campbell, the Honorable Mr. Justice J. Edward Scanlan, Master Calum U.C. Macleod and moderated by Anthony Lin in replacement of Yasmin Visran at Industrial Alliance Insurance Inc.

It seems the Honorable Mr. Justice S.J. LoVecchio was not able to make it to the conference. It is sad since I had already heard him at another conference and found him generous with all the information he gave as well as the good interaction he had with the participants.

The Honorable Mr. Justice Colin L. Campbell

When the Ontario discovery task force was created, EDD was not even on the radar screen. The first draft created a big reaction in the judiciary. Lawyers and judges saw problems rather than solutions. For example, it stated that oral discovery should no be more than one day. Last year, the task force decided to pull out the document from consultation.

Zubulake forced the creation of a sub-committee on edd. The new federal rules in the US were being discussed. They will be enacted on December 1st.

Posting of the guidelines and precious information on EDD on the OBA website.

They realised they can't do that in isolation and saw the need to brench out. They join the international Sedona conference.

Discussion in US states courts because the rules come down from the Federal judiciary and then, the sates individually adopt them. Rule 26f) created an alarm because they are interfering with substantive law (clawback agreement, etc.).

Following the EDD guidelinespublication they felt the need to flesh up the guidelines. A group is taking a look at creating templates, etc. Aim to have the work product on the OBA website so that people can access them.

They are looking at the issues of electronic evidence to create national practices in order to improve the commonality in the courts approach (terminology, templates, etc.).

It is and will remain an ongoing process.

The Honorable Mr. Justice J. Edward Scanlan

Lawyers don't recognise the issues and don't treat the edd in a careful way. The best example is Zubulake, a case that could happen to any, but a few, lawyer in Canada.

The more courts, lawyers and litigants recognise the problems, the more they will buy-in.

Zubulake brough up the issue of cost-shifting and created a comprehensive analysis.

Judges, lawyers and litigants don't recognise the issues:
In the Spielo case, the issue of privilege communication has not been raised!!
Supreme court Celanese case: things were not done properly re privilege
The Supreme is keeping the privilege a secret gallery

Litigation hold
Immediatly advise client re litigation freeze
When do you advise the other party: how involved do you want to be?
Do you have to involve the court (Anton Piler)?

The Honorable Mr. Justice Colin L. Campbell
Orders are intrusive and he often refuses the order that are no properly lined up
Who is the supervisor (gate keeper)

The Honorable Mr. Justice J. Edward Scanlan
Personal information on the desktop

Guidelines vs Substantive law: do they conflict?

?Servier case (US)?: order stated that information could not be used in other cases but canadian judge used the info.

Sreach terms and technology help reduce the costs
Clawback when released privileged information
Substantive law does not provide for such disclosure.
Does it mean the info cannnot be used in a criminal case or in another province

?Oppss (US)?: clawback agreement do not protect as you would think

Master Calum U.C. Macleod
Once the info is out, it is impossible to limit its dessimination

Magnitude of the problems is acute
The technologies have outstripped the possibility to understand it and create protocols
We need to develop protocols

The mere fact that technologies permit us to access certain info does not mean that court should order it

Most databases are not document
If you seize the harddrive rather than the limited info, it is like taking the photocopy machine and blank pages.

The Honorable Mr. Justice J. Edward Scanlan
The world has changed: the way we do business in nanoseconds
We have to be attuned internationally
Terminology needs to be consistent throughout the world

With electronic information, there are few people who know what info is where
Coleman and Morgan stanley: failed to identify backup tapes
At what stage you are confortable for certification?

The Honorable Mr. Justice Colin L. Campbell
Commercial list
Start by way of applications under the rules
Cross-examination cases: request for disclosure of info that would be subject to the Ontario deemed undertaking (litigation privilege) rule

You will be judged on the reasonableness of your efforts and protocols
US: Meeting and confer, early and often
The format of the produced documents
we use to pay students to screen documents in a small dark room: now the volume makes it impossible
We have tools (electronic searches, etc.): cost-benefit analysis
Importance of the issue, the money involved will modify the reasonableness of the initiatives

Continual meet and confer to get justice and not perfection

Resistence from the bench because there was already problems with case management

It was interesting to see canadian judges admit they are influenced by US edd caselaw.