E-Record Management and Retention:

A Checklist for Managing Compliance and Minimizing Risk

Peg Duncan, Independent Information Technology

and eDiscovery Consultant

• How to minimize risk in electronic records management and
  retention, while ensuring your legal obligations are met
  
• E-document management – what are the unique characteristics, challenges and problems?
  
• Capturing all records within the scope of business activity
  
• Organizational tips for your record-retention system
  
• Litigation holds – ensuring that your system allows the interruption of the destruction when the writ is dropped
  
• Best means of avoiding common pitfalls
  
• Ensuring that the goals of the records-retention system are met

Admissibility: Understanding Types and Sources

of Electronic Evidence

Karen B. Groulx, Pallett Valo LLP
Chuck Rothman, Wortzman Nickle Professional Corporation

• The habitat of electronic evidence – Blackberries, cell phones,
  memory keys, laptops, hard drives, ISP, off site storage, cross
  border sources, etc.

  - active data, archival data, backup data
  - hidden data – metadata, residual data, replicant data
  - dynamic electronic data: data in RAM (TorrentSpy)
  

• The benefits and risks of metadata
  

• Jurisdictional issues of location and ownership of information
  

• Considerations in deciding where to start and what to collect
  

• Admissibility issues: authenticating data, application of the Best Evidence rule, hearsay and business records, the chain of custody, etc.
  

• Privileged communications
  

• Legislative amendments addressing electronic evidence
  

• How to challenge an opponent’s electronic evidence
  

Newly added! E-Discovery & Social Networking

As more young people enter the workplace, the use of social networking sites such as Twitter, Facebook, etc. to conduct business will continue to grow. Litigators need to be aware of the nature of this form of communication in order to be able to deal with it, both from a records management and discovery perspective.

• How do you collect information from social networking sites?
  
• How do you effectively review it?
  
• How do you manage it as business records?

The Law on Discovery and Production of Electronic Evidence: Where Are We Now? Where Are We Going?

Glenn Smith, Lenczner Slaght Royce Smith Griffin LLP

• Nature and impact of the January 2010 Ontario Civil Procedure
  Rules changes
  - requirement for a discovery plan, r. 29.1
  - proportionality in discovery, r. 29.2 and the issue of voluminous

  documents
- relevance test, r. 30: replacement of “semblance of 

  relevance” test with a simple relevance test “relevant to

  any matter in issue”
- oral examinations for discovery, r. 31: time limited

  examinations
- simplified procedure, r. 30, 31 & 76

• Civil Justice Reform Project recommendations
  
• The Canadian Judicial Council’s National Model Practice Direction for the Use of Technology in Civil Litigation
  
• Understanding e-discovery issues in light of the Sedona Canada Principles
  
• Practical analysis of your case
  - determining whether settlement or litigation is the best approach in

  each case
- proportionality, costs and settlement dynamics
- the “smoking gun” document and practical implications

  for your case
- model precedent – Advice Memo to client

Luncheon Speaker

Duncan C. Boswell, Gowling Lafl eur Henderson LLP

The Ontario E-Discovery Implementation Committee’s (EIC’s) Most Recent Additions to Its Model E-Discovery Precedents

The EIC is mandated to provide concrete assistance to civil litigators and the judiciary in adapting to the requirements of e-discovery and the related Ontario Rule amendments.

Since parties are now required to “consult and have regard to” the Sedona Canada Principles, the EIC has prepared model e-discovery precedents – included in the course materials – which are all systematically annotated to those Principles. Mr. Boswell, a member of the EIC, will provide valuable commentary on the precedents (with particular reference to those which have been added most recently), pointing out key methods for reducing
costs, streamlining the e-discovery process, and running e-trials.

Getting Relevant Electronic Evidence & the Discovery Process

Susan Wortzman, Wortzman Nickle Professional Corporation
Susan Nickle, Wortzman Nickle Professional Corporation

Discovery Plan

• Duties under the new Rules
  
• Consequences for failing to agree to a plan
  
• Model precedent letter confirming discovery agreement
  
• Who needs to attend the discovery plan meeting? What are their roles?
  
• Reasons for not asking for everything – cost, delay, volume, etc.
  
• Written discovery benefits – tailoring your questions appropriately with regard to opposing party’s use and structure of their electronic systems
• Strategies for discovery and production
  
• Identifying the version of the electronic data that is the best evidence, testifying that the electronic data has not been altered
  
• Production: agreeing on a readable, meaningful and consistent format for the production and delivery of electronic evidence
  

Getting Information from the Opposing Party

• Model precedent – tailoring your preservation letter to opposing counsel, sample preservation order
  
• Getting and reviewing the opposing counsel’s affidavit of documents
  - determining whether you need a motion and preservation order
  - further documentary production from opposing counsel
  

Getting Information from Your Client

• Advising your client on terminology and concepts arising from
  electronic evidence and the potential costs involved
  
• Identifying data sources
  
• Identifying key custodians
  
• How to obtain the best evidence relevant to the litigation
  - preservation issues
  - proper use of the litigation hold mechanism including to non-

  parties

• Strategies and tips on how to obtain electronic records efficiently
  
• Balancing preservation of electronically stored information and your client’s right to carry on business, Dulong v. Consumer Packaging Inc.
  
• Determining whether experts are needed (for the collection
  process, the culling process, computer forensics, etc.)
  
• Discussing the allocation of costs for preserving and producing
  relevant electronic documents, strategies for limiting the cost of carrying out your e-discovery obligations
  
• Addressing privacy and privilege issues including professional
  negligence, motions to remove counsel, Zubulake
  
• Unintended waivers of privilege and reclaiming privilege
  
• Determining relevance parameters
  
• Ontario Rules of Professional Conduct r. 4.01
  
• Working with your client’s IT department

Obtaining Relevant Electronic Evidence from Non-Parties

Alex Cameron, Fasken Martineau DuMoulin LLP

• Planning for e-discovery of non-parties
  
• Norwich orders, the Rules and the Family Law Rules
  
• Scope of production and non-party requests for compensation
  
• Privacy, privilege, cross border and confidentiality issues
  
• Relevance of the Sedona Canada Principles
  
• Recent case law and developments

The Special Case of Email

Daniel J. Michaluk, Hicks Morley Hamilton Stewart Storie LLP
John D. Gregory, General Counsel, Policy Division

Ministry of the Attorney General (Ontario)

• Authentication issues specific to emails
  
• Recognized standards relevant to finding electronic evidence admissible
  
• Emails in the course of carrying on business
  
• Privacy issues including email attachments
  
• Privilege calls including forwarded emails and group emails
  
• Issues surrounding email threads, mass emails
  
• Getting emails into evidence or keeping them out
  
• Employee communications and ESI in the workplace – control,
  access, privacy expectations and privacy rights
  - Canadian privacy legislation: Federal and Provincial
  - Criminal Code
  - Canadian Charter of Rights and Freedoms
  - Common-law torts

Early Case Assessment and Review of Electronic Documents

Dominic Jaar, President, Ledjit Consulting Inc.
Robert Castonguay, CISSP, Associate Partner, Advisory Services, KPMG Canada National Director, Forensic Technology and eDiscovery

Services, KPMG LLP

Melanie Schweizer, Senior Counsel, Litigation, Bell Canada

• Cost – the ever-present issue
  - considerations arising from size of case
  - manual vs. electronic review
  
• Preparation for review
  - gathering electronic documents
  - conversion vs. native review
  - specialized software
  - the other side’s documents
  - agreeing on format and coding and other issues
  - exchange of coding
  
• Linear vs. non-linear review
  - with or without specialized software
  - issues arising from non-linear review
  - challenging the other side’s review technique (or not)
  
• Privilege and privacy
  - review for privilege
  - agreements re: privilege
  - how to address privacy concerns
  
• Specialized tools
  - case management and analysis tools
  - review tools

Collection and Processing of Electronic Information Demystified: What Happens in the Black Box?

Dominic Jaar, President, Ledjit Consulting Inc.
Robert Castonguay, Associate Partner Advisory Services, KPMG Canada, National Director, Forensic Technology and eDiscovery Services, KPMG LLP

Collecting Electronic Data

• Means of collection
  
• Forensic imaging
  
• Logical collection
  
• Manual collection
  - what about metadata?
  
• Preservation, collection
  
• Available technologies

Processing Electronic Data

• DeNISTing
  
• Metadata extraction
  
• Filtering
  
• Searches (keyword/thesaurus/concept/semantic)
  
• Deduping and near-deduping
  
• Email threading
  
• Clustering

Spoliation in Canada

Michael Statham, WeirFoulds LLP

• Applicable rules and principles
  
• Relevant case law, including McDougall v. Black & Decker Canada Inc. and Jay v. DHL Express (Canada) Ltd.
  
• Sanctions for the intentional and unintentional destruction of
  evidence, including adverse inference, dismissal, exclusion of
  evidence and costs
  
• Best practices to reduce your risks during litigation

Obtaining Electronic Evidence Through Motions

and the New Rules of Civil Procedure

Berkley D. Sells, Fasken Martineau DuMoulin LLP

• How your motions practice is impacted as a result of the recent
  Rule changes
  
• Tactics for tailoring the discovery process
  

Pleadings

- defining relevance and the scope of document

  preservation and disclosure obligations
- timely use of amended statements of claim
- motions to strike and motions for particulars

Documentary and Oral Discovery

- motions for further and better affi davits of documents
- motions to compel production of electronic evidence

  and metadata
- impact of the new discovery Rules

Anton Piller Orders

- as a “civil search warrant”
- procedural considerations

- appropriate terms of the order
- seizing electronic evidence
- lessons from orders gone wrong – Celanese Canada

  Inc. v. Murray Demolition Corp.
- checklist of steps and issues to consider

Sample precedents will be used to reinforce key principles.

Making the Most of Metadata

Sandra Potter, Potter Farrelly & Associates

• Metadata from a litigator's perspective
  
• How to think about metadata
  - content, context and structure
  
• Tips for metadata production and the Sedona Canada Principles
  - when it must be produced
  - when it may be produced
  
• Thinking practically about proportionality
  - risk management and cost/benefit analyses

Judges’ and Master’s Panel — The Role of Electronic

Evidence in Legal Proceedings

The Hon. Justice Mary Lou Benotto, Superior Court of Justice (Ontario)
The Hon. Justice Colin L. Campbell, Superior Court of Justice (Ontario)
Master B. Calum Macleod, Case Management Master

Superior Court of Justice (Ontario)

Kelly Friedman, Davis LLP (Moderator)

• Current and future trends
  - the use of electronics to manage your case from the filing
  

  of the first pleading to the receipt of judgment
- impact of the Rule changes

• Ensuring the admissibility of electronic evidence at trial
  
• Making the most of the e-courtroom