Hot Off the Press: Fasken Martineau literally writes the book on electronic evidence and e-discovery
Electronic Evidence and E-Discovery (Butterworths: Toronto, 2010)
August 2010
Virtually every case today involves preserving and disclosing a large volume of e-mails, spreadsheets, and other electronic documents. Managing this information strategically and cost-effectively can be daunting for litigation counsel, corporate counsel, and business executives alike.
In answer to this challenge, David Wotherspoon and Alex Cameron have written a practical guide, titled Electronic Evidence and E-Discovery (Butterworths: Toronto, 2010). The guide is designed to be accessible to a wide audience of lawyers and business executives. Their advice focuses on risk management and applicable legal and business considerations.
Here is a brief summary of some of the key topics in Electronic Evidence and E-Discovery:
Managing the risks and costs of electronic evidence begins with the development of a document retention policy. Such policies should encompass three major themes: reasonableness, good faith, and responsiveness, including an effective litigation hold mechanism. Electronic evidence standards should also be considered because they may maximize the admissibility and weight that may be attached to the information in the event that there is a dispute;
Litigation hold mechanisms must be carefully designed, documented and implemented. The management of an effective written litigation hold requires hands-on action by counsel and parties. A recent case in the United States held that a failure to implement an adequate litigation hold under modern litigation e-discovery standards may amount to negligence or gross negligence;
Counsel and clients must carefully consider when the obligation to preserve relevant documents may arise in contemplation of anticipated litigation. That obligation may arise sooner for plaintiffs than for defendants since plaintiffs control the timing of the litigation;
In considering the scope and sources of information to be preserved and produced in litigation, counsel and clients must increasingly have regard to privacy laws that may impact their ability to collect, use and disclose information in litigation;
Counsel and clients should understand and exercise the evolving concept of 'proportionality' in managing the preservation and production of electronic information in litigation, particularly where significant costs are involved. The Sedona Canada Principles Addressing Electronic Discovery and forthcoming white papers on proportionality and cost containment from Sedona Canada are an essential resource.
Electronic Evidence and E-Discovery touches on the above issues and many more. From setting up a document retention policy, including litigation holds, to using electronic evidence effectively at trial, this new guide contains business-oriented commentary grounded in the changing legal landscape regarding electronic evidence and e-discovery.
Edited by Dr. Sunny Handa, the guide is published by LexisNexis Canada. For more information, please visit the LexisNexis bookstore.
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