Welcome and Introduction from the Course Leader

Kelly Friedman, Ogilvy Renault LLP

Understanding Types and Sources of Electronic Evidence

Cindy Clarke, Borden Ladner Gervais LLP
Peter Vakof, Partner, Advisory Practice, PricewaterhouseCoopers LLP Computer Forensics and E-Discovery

• The location of electronic evidence: Blackberries, cell phones, memory keys, laptops, hard drives, ISP, offsite storage, cross border, etc.
  
• Identifying sources of electronic evidence
  - 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
  
• The omnipresent nature of electronic information; the eBay Canada case; jurisdictional issues of location and ownership of information
  
• Considerations in deciding where to start and what to collect before taking the electronic journey

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

• Currently: Civil Justice Reform Project recommendations by Justice Osborne and recommendation #32 references the E-Discovery
  Guidelines and The Sedona Canada Principles; common law precedent; Canadian Judicial Council’s National Model Practice Direction for the Use of Technology in Civil Litigation
• Understanding e-discovery issues with regard to The Sedona Canada Principles
• Impact of January 1, 2010 Ontario Civil Procedure Rule 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

• Practical analysis of your case:
  - investigate and determine whether settlement or litigation is the

  best approach
- proportionality, costs and settlement dynamics and a

  nod  

  to the Maple Leaf case
- the “smoking gun” document and practical implications

  for your case
- model precedent: advice memo to client

The Initial Client Meeting

Karen B. Groulx, Pallett Valo LLP

• Advising your client on terminology and concepts arising from electronic evidence and the potential costs involved
  
• Identifying data sources
  
• Identifying key custodians
  
• Determining relevance parameters
  
• Designing the litigation hold
  
• Model precedent: advice memo regarding documentary discovery preservation (a) to a corporate client, (b) to an individual client, Ontario Rules of Professional Conduct r. 4.01
  
• Working with your client’s IT department
  
• Model precedent: preservation agreement

Luncheon Address

David Outerbridge, Torys LLP, Chair of the E-Discovery

Implementation Committee

Mr. Outerbridge will speak about the work of the Ontario E-Discovery Implementation Committee (EIC), and its efforts to provide concrete assistance to civil litigators and the judiciary in adapting to the requirements of e-discovery and the forthcoming Ontario Rule amendments coming into force in Ontario on January 1, 2010. As parties will be 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 these Principles. Mr. Outerbridge will address some of the key methods for counsel and clients to reduce costs and streamline the e-discovery process.

Getting Relevant Electronic Evidence

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

A) From Your Client

• How to obtain the best evidence relevant to the litigation
  

- preservation issues; understanding the characteristics of

  electronic data from the printed format of the same data
- proper use of the litigation hold mechanismincluding 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 an expert/experts are needed (for the collection process, the culling process, computer forensics, etc.)
  

B) 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 for further documentary production

  from opposing counsel

C) Discovery Plan

• Duties under the new Rules
  
• Consequences for failing to agree to a Plan
  
• Model precedent: letter confi rming 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
  
• 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

Tactics for Tailoring the Discovery Process

Berkley D. Sells, Fasken Martineau DuMoulin LLP

• Pleadings
  

- defining relevance and the scope of document  

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

• Documentary and oral discovery
  

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

  metadata
- impact of the new discovery Rules in 2010

• 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

Spoliation in Canada

Marie-Andrée Vermette, WeirFoulds LLP

• Preservation letters and agreements
  
• Relevant case law, including Western Tank and Lining Ltd. v. Skrobutan et. al., Elliott v. Trane Canada Inc., etc.
  
• Intentional and unintentional destruction of electronic evidence
  
• Best practices to reduce your risks during litigation
  
• Sanctions: from adverse inference to contempt of court

Introduction to Day Two from the Course Leader

Kelly Friedman, Ogilvy Renault LLP

Getting 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
  
• Impact of the Sedona Canada Principles
  
• Recent case law and developments

E-mail as Evidence

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
- the Criminal Code
- the Canadian Charter of Rights and Freedoms
- common law torts

Reviewing Electronic Documents

Susan Nickle, Wortzman Nickle Professional Corporation

• Determining the conduct of the review: manual or electronic?
  
• Determining when and how to use forensic analysis
  
• Beyond a linear review—cost savings found in applying case appropriate technology
• Available tools to fit your budget and the size of your review: “culling” software, in-house resources including law clerks, avoiding technologies that grow obsolete
  
• Relevancy and privilege issues
  - dealing with unwieldy privilege requests
  - automated privilege review issues
  - redaction
  - handling document groups
  
• Protecting trade secrets, employee privacy and other confidential information
• Management and reduction of costs
• Best practices including working with IT professionals, using an outside expert, achieving consistency in coding documents, available shortcuts to manage document review
• Analyzing the information in front of you
  - organizing document custodians and key witnesses
  

- preparing to persuasively explain why you want to keep

  documents out

Electronic Evidence at Trial

Kelly Friedman, Ogilvy Renault LLP

• Admissibility issues
  

- authentication of data, proving reliability and the best

  evidence rule
- hearsay: R. v. Starr SCC 2000, the “principled

  approach” and business records
- chain of custody
- privileged communications
- expert evidence

• Legislative amendments addressing electronic evidence:
  - Uniform Electronic Evidence Act [UEEA]
  - Canada Evidence Act
  - Ontario Evidence Act
  
• How to challenge an opponent’s electronic evidence
  
• Protective orders
  
• Cost issues

Judges’ Panel: The Role of Electronics in Legal Proceedings

Moderator
Kelly Friedman, Ogilvy Renault LLP

Panellists
The Hon. Justice Colin L. Campbell, Superior Court of Justice (Ontario)
The Hon. Justice Arthur M. Gans, Superior Court of Justice (Ontario)
The Hon. Justice Frances P. Kiteley, Superior Court of Justice (Ontario)

• Current and future trends: the use of electronics to manage your case — from the filing of the first pleading to the receipt of judgment
  
• Ensuring admissibility of electronic evidence at trial
  
• Making the most of the e-courtroom
  

Ample time will be provided for questions and discussion.