Canadian legal community mulls impact of U.S. e-discovery rules

The United States implemented several changes to the Federal Rules of Civil Procedure last Friday that could make waves for Canadian IT staff working not only in law, but in all industries.

Electronic discovery (or e-discovery) governance has generally been slapdash, formulated on inconsistent case law and local directives. The amendments attempt to remedy that by requiring that parties bring up and agree upon e-discovery issues — such as file format, information preservation, and privileged information — at the beginning of the proceedings. They also relieve parties from having to search for inaccessible information, and protect privilege, as well as cut down on the leniency given to parties who lose electronic information (during automated e-mail maintenance, for example).

Clearly the bottom line is that American companies’ IT departments had better get their data preserved so that their employers are covered if a lawsuit comes their way, but what about Canadian companies? C. Ian Kyer, a senior partner in Fasken Martineau‘s Toronto office, said that the new American amendments definitely will have an effect on how Canadian outposts of American companies store electronic information.

“So much of Canada does business with U.S. companies that even Canadian-owned companies will have to deal with the new laws.” Kyer said, adding that many American companies go out of their way to specify that their business dealings are governed by American law and that if litigation comes into the picture, it will be done on American soil.

“The potential for a Canadian company to be compelled to comply with these new laws is significant,” said Kyer, who predicted that American companies’ Canadian outposts will start changing their processes right away, while IT departments in many other Canadian companies will follow suit over the next year.

Insight Information hosted an e-discovery forum on Tuesday where people from corporate finance, RCMP legal services, Department of Justice Canada, Manulife Financial, barristers, law clerks, and paralegals gathered to discuss e-discovery issues for law professionals.

Pamela Fontaine-Peters, chair of the event and senior manager of litigation technology with Gowling Lafleur Henderson LLP, said that it will often be prudent to hire an IT professional to train employees (or call upon an internal IT staffperson to get e-discovery training).

IT professionals could also help coach about using filtered searches for large volumes of information, or formulate a database that could be housed on a Web server and accessed through the Internet, according to Pallett Valo LLP associate Karen Groulx. Fontaine-Peters also advocates getting a primer on metadata and native formats from an e-discovery expert.

Without such a consultation, said  the Department of Justice Canada‘s national litigation support manager, Steve Accette, you could be losing valuable metadata without even knowing it. “Paper printouts of e-mail are no longer sufficient. You need the metadata: who knew what when,” he said. “Electronic policies have not kept up with technology’s advancement. It’s based on the paper world and we lose metadata when it’s stored on the server or in the back end.”

Accette said that companies’ IT departments traditionally drove information policies, rather than the law or business sides. Said Accette: “It’s important that we begin to discuss this and come together — Bob the IT guy should not be doing this off the side of his desk.” Blunders can happen as a result of this, according to Accette — an IT professional making an effort to store all electronic data to comply with all the rules loses the metadata, resulting in all the files being labeled as originating from Bob the IT guy.

Kyer has already seen this shift in practices result in a cottage industry. “I’m already getting e-mails telling me (computer forensics companies) can help my firm comply with the new laws,” he said.

Computer forensics companies can perform such feats as retrieving seven-year-old e-mails or monitor all activity on an individual’s computer, said Associate Director, Discovery Services Rene Hamel of Navigant Consulting, which does computer forensics.

While business may be booming for the compu-CSI-ers, both Fontaine-Peters and Kyer see no official changes to Canada’s Rules of Civil Procedure on the horizon. “There’s a Wild West mentality in the States,” said Fontaine-Peters. She said that Canada doesn’t have the same amount of money or resources to throw at the same amount of e-discovery-based cases, but that Canada can learn from any mistakes the U.S. might make with their new laws.

Kyer said that the new laws could act as a guideline to interpret our own Rules of Civil Procedure. “Even without change to our actual Rules, these amendments will definitely lead to change,” said Kyer.

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