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  • Third Party Information and Norwich orders
  • Use of a third-party Inspector and Electronic Discovery vendor to retrieve information from electronic sources
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The Sedona Canada Principles Addressing Electronic Discovery

Preface (0 annotation)

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Foreword (1 annotation)

1 annotation

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Introduction (49 annotations)

49 annotations

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Principle 1 (7 annotations)

Electronically stored information is discoverable.

7 annotations

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Comment 1.a. Definition of Electronically Stored Information (25 annotations)

25 annotations

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Comment 1.b. E-Commerce Legislation and Amendments to the Evidence Acts (14 annotations)

14 annotations

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Principle 2 (0 annotation)

In any proceeding, the parties should ensure that steps taken in the discovery process are proportionate, taking into account (i) the nature and scope of the litigation, including the importance and complexity of the issues, interest and amounts at stake; (ii) the relevance of the available electronically stored information; (iii) its importance to the court’s adjudication in a given case; and (iv) the costs, burden and delay that may be imposed on the parties to deal with electronically stored information.

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Introduction (24 annotations)

24 annotations

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Comment 2.a. The Proportionality Rule (17 annotations)

17 annotations

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Principle 3 (3 annotations)

As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.

3 annotations

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Comment 3.a. Scope of Preservation Obligation (0 annotation)

0 annotation

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Comment 3.b. Preparation for Electronic Discovery Reduces Cost and Risk (0 annotation)

0 annotation

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Comment 3.c. Response Regarding Litigation Preservation (13 annotations)

13 annotations

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Comment 3.d. Notice to Affected Persons in Common Law Jurisdictions (3 annotations)

3 annotations

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Comment 3.e. Preservation in the Province of Quebec (18 annotations)

18 annotations

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Comment 3.f. Extreme Preservation Measures Not Necessarily Required (3 annotations)

3 annotations

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Comment 3.g. Preservation Orders (57 annotations)

57 annotations

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Comment 3.h. All Data Does Not Need to be “Frozen” (3 annotations)

3 annotations

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Comment 3.i. Disaster Recovery Backup Media (9 annotations)

9 annotations

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Comment 3.j. Potential Preservation of Shared Data (0 annotation)

0 annotation

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Principle 4 (1 annotation)

Counsel and parties should meet and confer as soon as practicable, and on an ongoing basis, regarding the identification, preservation, collection, review and production of electronically stored information.

1 annotation

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Comment 4.a. Meet Early and Often (5 annotations)

5 annotations

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Comment 4.b. Who Should Attend (0 annotation)

0 annotation

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Comment 4.c. Preparation for the Meet and Confer (6 annotations)

6 annotations

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Principle 5 (10 annotations)

The parties should be prepared to produce relevant electronically stored information that is reasonably accessible in terms of cost and burden.

10 annotations

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Comment 5.a. Scope of Search for Reasonably Accessible Electronically Stored Information (14 annotations)

14 annotations

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Comment 5.b. Outsourcing Vendors and Non-Party Custodians of Data (12 annotations)

12 annotations

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Principle 6 (7 annotations)

A party should not be required, absent agreement or a court order based on demonstrated need and relevance, to search for or collect deleted or residual electronically stored information.

7 annotations

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Comment 6.a. The Scope of the Search (7 annotations)

7 annotations

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Principle 7 (0 annotation)

A party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect potentially relevant electronically stored information.

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Comment 7.a. Use of Targeted Selection to Focus Discovery (4 annotations)

4 annotations

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Comment 7.b. Techniques to Reduce Volume (9 annotations)

9 annotations

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Comment 7.c. Review (2 annotations)

2 annotations

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Principle 8 (0 annotation)

Parties should agree as early as possible in the litigation process on the format in which electronically stored information will be produced. Parties should also agree on the format, content and organization of information to be exchanged in any required list of documents as part of the discovery process.

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Comment 8.a. Production of Electronic Documents and Data Should be in Electronic Format (12 annotations)

12 annotations

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Comment 8.b. Agreeing on a Format for Production (7 annotations)

7 annotations

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Comment 8.c. Document Lists – Format and Organization (11 annotations)

11 annotations

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Principle 9 (0 annotation)

During the discovery process parties should agree to or, if necessary, seek judicial direction on measures to protect privileges, privacy, trade secrets and other confidential information relating to the production of electronic documents and data.

0 annotation

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Introduction (7 annotations)

7 annotations

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Comment 9.a. Inadvertent Disclosure (12 annotations)

12 annotations

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Comment 9.b. Sanctions (4 annotations)

4 annotations

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Comment 9.c. Use of Court Appointed Experts to Preserve Privilege (12 annotations)

12 annotations

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Comment 9.d. Protection of Privilege with a Modified “Claw-back” Agreement (5 annotations)

5 annotations

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Comment 9.e. Document Lists – Lawyer Work Product (3 annotations)

3 annotations

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Comment 9.f. Protection of Confidential Information (5 annotations)

5 annotations

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Comment 9.g. Privacy Issues (27 annotations)

27 annotations

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Principle 10 (0 annotation)

During the discovery process, parties should anticipate and respect the rules of the forum in which the litigation takes place, while appreciating the impact any decisions may have in related actions in other forums.

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Introduction (3 annotations)

3 annotations

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Principle 11 (1 annotation)

Sanctions should be considered by the court where a party will be materially prejudiced by another party’s failure to meet any obligation to preserve, collect, review or produce electronically stored information. The party in default may avoid sanctions if it demonstrates the failure was not intentional or reckless.

1 annotation

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Comment 11.a. The Need for Sanctions (1 annotation)

1 annotation

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Comment 11.b. Canadian Experience to Date with Sanctions (8 annotations)

8 annotations

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Comment 11.c. American Experience with Sanctions (7 annotations)

7 annotations

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Comment 11.d. Sanctions for Non-disclosure (25 annotations)

25 annotations

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Comment 11.e. Reasonable Records Management Policies (11 annotations)

11 annotations

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Principle 12 (0 annotation)

The reasonable costs of preserving, collecting and reviewing electronically stored information will generally be borne by the party producing it. In limited circumstances, it may be appropriate for the parties to arrive at a different allocation of costs on an interim basis, by either agreement or court order.

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Introduction (13 annotations)

13 annotations

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