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Category Archives: E-Discovery

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3rd Edition of E-Discovery in Canada is now available

Posted in E-Discovery

E-Discovery_in_Canada_Cover_JAN2017Susan Wortzman, partner and Director of E-Discovery, and a team of experienced authors the third edition of E-Discovery in Canada. The book covers everything lawyers, in-house counsel and law clerks need to know about conducting e-Discovery, from preservation to proportionality to costs.

Learn from the professionals in Canada and find out how to leverage their know-how for better outcomes for your clients’ in this revised and updated edition. The third edition can be purchased here.

This article was originally posted on the Canadian Class Actions Monitor blog on June 2, 2017… Continue Reading

Hot Off the Press – Doing Business in Canada: Navigating Opportunities for Investment and Growth

Posted in Anti-Spam, Consumer Protection, E-Discovery

If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.

The book includes a chapter on information technology, with sections on:
  • export control of technology
  • consumer protection
  • anti-spam and anti-spyware
  • cyber-libel
  • criminal law
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Cour suprême : Interception de textos auprès d’un fournisseur de services de télécommunications

Posted in E-Discovery

R. c. Société Telus Communications est un autre exemple jurisprudentiel intéressant de l’application du droit général à la protection contre les fouilles, les perquisitions et les saisies abusives garanti par l’article 8 de la Charte canadienne en fonction du progrès technologique.

La Cour suprême a dû se prononcer sur la validité d’un mandat général obtenu par la police pour mettre la main, de manière prospective, sur des messages textes (« textos ») auprès d’un fournisseur de services de télécommunications, soit Telus. Il s’agit d’un appel d’une décision de la Cour supérieure de justice de l’Ontario.

À titre de précision préliminaire, … Continue Reading

Status Update: Social Media in the Changing Landscape of Litigation in Canada

Posted in E-Discovery, Privacy

Information disseminated through social media platforms such as Facebook and LinkedIn is of growing utility in litigation matters. Evidence obtained from social media accounts by way of discovery preservation and production orders has significantly strengthened the positions of litigating parties. This should come as no surprise as individuals routinely “post” messages, thoughts, pictures and experiences on these platforms, leaving a wake of evidence in the process.

There has been marked development in this area of law in Canadian jurisprudence. To date, Courts and Tribunals have, among other things, ordered the preservation and production of entire social media accounts, dismissed wrongful … Continue Reading

Custodian Self-Collection and Employee-Based Searching – Evaluating Adequacy

Posted in E-Discovery

Can employees be trusted to search their own records in response to an e discovery request? What documentation is required to demonstrate “search accuracy” in self-collection? What if the custodians get it “wrong”?

These are some of the questions addressed in the Opinion and Order filed July 13, 2012 in National Day Laborer Organizing Network v. The United States Immigration and Customs Enforcement Agency in the United States District Court, Southern District of New York. The matter concerns a 21-page request under the Freedom of Information Act for information from a variety of federal agencies and departments about the Secure … Continue Reading

Where the Money Goes: Rand Institute’s Report Highlights Companies’ e-Discovery Spend

Posted in E-Discovery

What are the costs associated with different phases of e-discovery production? How are these costs distributed across internal and external sources of labour, resources, and services? And how can these costs be reduced without compromising quality? The Rand Institute for Civil Justice’s April monograph, “Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery” explores these issues, highlights the main challenges related to preserving electronic information and provides some recommendations on how to address complaints of excessive costs and uncertainty.

In the Rand study, the researchers collected data from eight major corporations across 57 cases and interviewed … Continue Reading

Preserve Documents in the Face of Litigation

Posted in E-Discovery

With the massive number of emails and other electronic documents generated today on a daily basis, organizations face tough challenges in preserving documents in the face of litigation. In Voom HD Holdings LLC v. EchoStar Satellite LLC, Index No. 600292/08, 2012 NY Slip Op 00658 (January 31, 2012), the New York Appellate Division provides some timely guidance on what steps parties should take to preserve documents when faced with the prospect of litigation.

The case involved a contractual dispute where the parties had been engaged in contentious discussions for six months prior to the filing of the lawsuit. The … Continue Reading

Surprising Results from an e-Discovery Survey

Posted in E-Discovery

A recent survey on information retention and e-discovery practices, undertaken by a large IT service provider, yielded some surprising results.

The purpose of the survey was to better understand how companies are responding to litigation and regulatory requests for information despite an increasing amount of data from a growing number of sources. The survey also asked whether companies had implemented formal information retention and e-discovery practices, and the impact of doing so.

The survey uncovered the following facts:

  • E-mail is no longer the most commonly requested category of record
  • Instead, both loose files and information from databases outrank e-mail in
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Document Preservation – Five Steps to Take if You are Sued

Posted in E-Discovery

Parties to litigation have an obligation to produce all documents under their care, control or power. Under most rules of court, “documents” include items created electronically, such as standard office suite documents, e-mails, text messages, voice message records and other electronic artifacts. Often, a failure to produce a document relevant to the issues in the litigation could result in the court making negative findings against your case at trial, having your evidence struck, and could even include more extreme measures such as costs against you or other sanctions.

Electronic evidence can be volatile, and can be destroyed or altered even

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