The Modern Archivist

eDiscovery in Canada

I recently attended the IQPC e-Discovery Canada Conference and gained some interesting takeaways regarding the current state of E-Discovery in Canada. Frankly, the current situation reminds me of the U.S. e-Discovery market from four or five years ago – corporations are generally aware of the threat of large scale litigation, and the e-Discovery nightmare that it can bring, but are hesitant to act. This is true even in the face of the Montreal Pension Plan v Bank of America case.   Indeed, most of the GCs I spoke to said that it was a freak case and that “it wouldn’t happen” to them.

This attitude seems overly optimistic – with the recent class action lawsuits against Toyota and BP in the US, alarm bells should be going off in Canada.  Cases that range across the entire organization, spanning millions of electronic documents, are bound to become a reality. In general, large-scale litigation, such as class action lawsuits, is less frequent in Canada. However, the large presence of American based firms is sure to increase the likelihood of litigation.

A recent quote from Calum MacLeod, a case master for the Ontario Superior Court of Justice in Ottawa, does a great job of summing up the current state of eDiscovery in Canada. “Companies without a protocol for managing electronically stored information are in big trouble for a number of reasons, it will cost them a fortune to respond to eDiscovery requests; they’re going to have a tough time finding what they need and it will be difficult for them to raise the proportionality argument when they have no idea what’s involved in retrieving the information.”

I hope the GC’s take this issue seriously and, as an old Russian proverb says, “learn from the mistakes of others and not your own.”